ex-ND3, USN

Current Discharge and Applicant’s Request

Application Received: 20150203
Characterization of Service Received:   
Narrative Reason for Discharge:    
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20080111 - 20081111  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20081112	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20131220	Highest Rank/Rate:  ND2
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  71
Evaluation Marks:	Performance:  3.8 (7)	Behavior:  2.7 (7)	OTA:  3.35

Awards and Decorations (per DD 214):	Rifle  Pistol        

Periods of UA/CONF:  

NJP:  

- 20130513:	Article 
	Awarded:     Suspended:    (Vacated 20130721)

SCM:  

SPCM:  

CIVIL ARREST:  

- 20130414:	Charges: Driving while impaired by alcohol; driving vehicle while under the influence of alcohol; negligent driving vehicle in careless and imprudent manner endangering property, life and person; reckless driving vehicle in wanton and willful disregard for safety of persons and property

- 20130721:   Charges:  Theft less than $100, disorderly conduct and resist/interfere with arrest

Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 36, effective 18 August 2011 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 95, 111, 134.  

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant is entitled to a discharge upgrade under Secretary Hagel’s memorandum of September 13, 2014 because his Post-Traumatic Stress Disorder (PTSD) was likely a mitigating cause of his misconduct that outweighs its severity.
2.	The Applicant was entitled to the protections of II USC 1177 and should have had a determination as to whether his Traumatic Brain Injury (TBI) contributed to his misconduct prior to separation.
3.	Even if the Applicant technically does not qualify for protection under USC 1177, he is within the protected class intended by Congress and equitable considerations warrant consideration of the TBI relative to discharge status.
4.	The Naval Academy violated MILPERSMAN 1910-702 in failing to consider the Applicant’s TBI as contributing to his misconduct prior to his separation.
5.	The Naval Academy violated MILPERSMAN 1910-702 since once the Applicant was diagnosed with TBI, the Superintendent lacked separation authority and a mental health professional review was required prior to separation.
6.	The Applicant was unfairly and inappropriately denied a personal hearing relative to vacation of his NJP and separation in violation of JAGMAN and Navy General Regulations.
7.	The Naval Academy erroneously determined that the Applicant committed “serious misconduct” given (1) the police report shows no intention to commit theft and (2) Applicant had a right to resist an illegal arrest under the UCMJ.
8.	The Applicant’s overall quality of service warranted an Honorable classification, and the restaurant incident was not sufficiently negative to warrant a General classification.
9.	Considering the facts and circumstances, equitable considerations warrant an upgrade even if no legal error is found.
10.	(Board Issue) The NDRB considered the Applicant’s service connected disabilities including cognitive defects in motor slowing due to decompression sickness and hypoxic episodes as contributing factors to his performance decline and misconduct events during his final months of enlistment.

Decision

Date:  20150915		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The Naval Discharge Review Board (NDRB) determined relief is warranted based on equitable grounds based on Issue # 10 due to the Applicant’s service connected cognitive defects.  The NDRB voted unanimously to upgrade the characterization of service and to change the narrative reason for separation.  

As a result of the Applicant’s claim of both PTSD and TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  The Applicant stated that he was diagnosed with PTSD and TBI related to his service as a Navy diver.  The Applicant’s service and medical records document his service as a Navy diver as well as his diagnoses of major depressive disorder (MDD), cognitive defects in motor slowing due to decompression sickness and hypoxic episodes, and alcohol dependence.  Due to the actual diagnoses found in the record, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board considered all applicable medical guidance in reviewing the Applicant’s claims.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included   for  of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle, one specification) and two civil arrests for driving while impaired by alcohol; driving vehicle while under the influence of alcohol; negligent driving vehicle in careless and imprudent manner endangering property, life and person; reckless driving vehicle in wanton and willful disregard for safety of persons and property, theft less than $100, disorderly conduct and resist/interfere with arrest.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

1-5:  (Decisional) ()  .  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB requested all records of medical treatment, both active duty and post-service, from the VA and was provided selected medical records from the Applicant and his counsel.  The records received and reviewed by the NDRB show the Applicant received treatment for PTSD and TBI symptomology but failed to document any actual diagnosis or findings of PTSD or substantial TBI warranting such considerations as contended by the Applicant’s issues.  A comprehensive review of all available medical records, to include records provided by the Applicant, as well as emails obtained by the Applicant’s counsel showing his command was aware of his screening for TBI during his separation proceedings, and show that his command was well aware of his medical screening and diagnoses at the time of his separation.

The medical notes available for the NDRB’s review indicated that the Applicant was finally diagnosed with major depressive disorder (MDD), alcohol dependence, and cognitive defects in motor slowing due to decompression sickness and hypoxic episodes after numerous, extensive medical screenings.  The “claimed as” annotations on the VA diagnosis decision sheets only annotate what the Applicant was initially screened for and not what his final, actual diagnoses were determined to be.  The Applicant’s medical notes annotated that a brain cyst resulted in his screening for a TBI; however, this screening determined that his two TBI events were mild in nature and that his cognitive defects were not the result of these TBIs.

The NDRB considered the Applicant’s oral testimony, documentation provided in support of his case to include his character reference letters and a 9 September 2014 Department of Veterans Affairs decision documentation stating his compensation related diagnoses consist of MDD, cognitive defects in motor slowing due to decompression sickness and hypoxic episodes, tinnitus, and bilateral hearing loss.  The NDRB noted that this decision document stated:  “Service connection for cognitive deficits and motor slowing due to decompression sickness and hypoxic episodes (claimed as traumatic brain injury (TBI)) has been established as directly related to military service.”  The VA examiner noted that your VA examination was originally ordered as an Initial Residuals of TBI C&P exam.  Based on your history, it appeared that you did sustain two mild TBI/concussions in service.  However, it is very unlikely that your current cognitive deficits and motor slowing are related to those concussions.  Based on all available evidence the VA examiner opined that your current cognitive deficits and motor slowing are at least as likely as not related to decompression sickness and hypoxic episodes from multiple long-term dives and reduced oxygen saturation incurred during your service as a Navy diver.  This condition was originally diagnosed in 2012 by the Defense Health Agency Neuro-rehabilitation and Traumatic Brain Injury National Intrepid Center of Excellence.  It was noted that the VA examinations findings are consistent with those of that evaluation.  Unless substantial and credible information exists to rebut the medical authority’s findings that occurred at or about the time of the Applicant’s separation from service, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation.

Finally, the record of evidence and the Applicant’s oral testimony conclusively shows that the Applicant was provided multiple counseling and rehabilitative opportunities throughout his enlistment both at his separating command and his preceding command.  This includes marital and personal counseling as well as counseling for substance abuse.  Though the Applicant may feel that PTSD and TBI were the underlying causes of his misconduct, the record reflects no such diagnoses in- or post-service.  As such, the evidence of record did not show that the PTSD or TBI were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions.  The record of evidence and documentation and testimony provided by the Applicant ultimately show that his command extensively considered his claimed conditions until such time as they were medically demonstrated to not be the conditions that were affecting him.  While the Applicant’s command could have documented that he was evaluated for two mild TBI events during his separation proceedings, the record of evidence clearly demonstrates that his command afforded him all due consideration during his separation procedure, that his cognitive deficits were unrelated to these mild TBIs, and that adding this language to his separation documentation would not have substantially affected the outcome of his discharge.  The NDRB found that the Applicant’s command acted properly and equitably with respect to these issues.  Relief denied based on the above issues.

6:  (Decisional) ()  .  The Applicant was unfairly and inappropriately denied a personal hearing relative to vacation of his NJP and separation in violation of JAGMAN and Navy General Regulations.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Administrative discharge processing is administrative in nature and not considered a form of punishment.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was substantially denied his rights at any point during his punishment for misconduct or administrative separation proceedings.

The evidence of record shows that on 20 July 2013 the Applicant was notified, in writing by the Commandant of Midshipmen, U.S. Naval Academy, of the possible vacation of the suspension portion of his previous NJP punishment.  This notification stated “You may, in accordance with references (a) and (b), submit matters in defense, extenuation, or mitigation of the violations on which this vacation action will be based.  If you elect to submit matters, they should be couched in temperate language and shall be confined to the pertinent facts.  Opinions shall not be expressed nor the motives of others impugned.  Your matters may not contain countercharges.  You will have any matters to me by 5 August 2013 in order to allow me to fully consider all matters prior to making my final decision.”  The Applicant signed an acknowledgement of this written notification on the same day it was issued.

The record next shows the Commandant of Midshipmen, U.S. Naval Academy formally decided to vacate the Applicant’s suspended punishment on 12 August 2013 and annotated his review of a letter submitted by the Applicant on 6 August 2013 in making his decision.  A medical note in his record dated 11 December 2013 stated:  “He will speak with the Commandant of the Naval Academy soon” with respect to his administrative separation.  There is also documentation in the record, submitted to this board by the Applicant, in the form of an email dated 18 December 2013 that states the Applicant had filled a “Request Mast” petition and submitted a letter requesting reconsideration of his separation processing on 16 December 2013.  The evidence of record shows the Applicant exercised his rights during the entire process of his punishment for misconduct and separation proceedings.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied based on this issue.

7:  (Decisional) ()  .  The Naval Academy erroneously determined that the Applicant committed “serious misconduct” given (1) the police report shows no intention to commit theft and (2) Applicant had a right to resist an illegal arrest under UCMJ.  The NDRB has no authority to make decisions concerning civilian police actions or civil rights protections.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  With respect to the serious offense that caused the Applicant’s separation, the NDRB found the case surrounding his misconduct was placed in a STET status from the Defendant Trial Summary from the District Court of Maryland for Anne Arundel County provided by the Applicant.  The NDRB notes that the Applicant had retained a private attorney for defense at his trial and that his STET status represents an indefinite postponement of his case.  In this case no guilty verdict was entered, but the Applicant was required to accept conditions set down by the court.  The NDRB finally noted that a case on the STET docket could have been re-opened at any time within one year in the state of Maryland if the conditions of the STET were violated.  Having charges indefinitely postponed has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge.

In accordance with the MILPERSMAN, service members may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Applicant was arrested for the theft of less than $100, disorderly conduct, and resisting/interfering with arrest by the Annapolis Police Department.  The NDRB concurs with the Applicant’s statement that if this event were viewed solely under the UCMJ violation of Article 121 Larceny for this event would not rise to the level of warranting a punitive discharge.  The NDRB also notes that violation of UCMJ Article 134 (Disorderly conduct, drunkenness) would not have risen to the level of warranting a punitive discharge.  However, the NDRB notes that the other civilian charge levied against the Applicant translates to the equivalent violation of UCMJ Article 95 (Resistance, flight, breach of arrest, and escape) which could result in a punitive discharge, one year confinement and total forfeitures of pay.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant was provided the opportunity to present his case in writing to his General Court-Martial Convening Authority for review and exercised that right.  The NDRB found this issue to be without merit.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.  Relief denied based on this issue.

8:  (Decisional) ()  .  The Applicant’s overall quality of service warranted an Honorable classification, and the restaurant incident was not sufficiently negative to warrant a General classification.  The Applicant was administratively separated; not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations were given to the member’s length of service, grade, aptitude, and physical and mental condition.  

A medical note dated 2 August 2013 and the record of evidence shows that the Applicant had an alcohol related incident (ARI) in the form of a driving under the influence arrest on or about 13 April 2013.  Afterward both this medical note and the record of evidence document that he attended alcohol rehabilitation treatment in May 2013 and then had a subsequent ARI in July 2013 due to his arrest for theft of less than $100, disorderly conduct, and resisting arrest.  Medical notes indicate that he had continued drinking while on anti-depressant medications contrary to his after-care plan and mental health provider’s instructions.  While the Applicant was never processed or notified of separation due to being an alcohol rehabilitation failure, his record clearly supports separation under the governing regulations for alcohol rehabilitation failure with an Under Honorable Conditions (General) discharge characterization.

As annotated in his service record and in his counsel’s prepared statement, the Applicant’s performance deteriorated to a substandard level by early 2013 as documented by counseling statements for events including showing up to work unshaven, showing up to work late, having a disheveled uniform appearance, and speeding in a government vehicle (84 in a 60mph zone) and getting a civilian reckless driving ticket for doing so in addition to the misconduct events that resulted in his nonjudical punishment and civilian arrests.  The documentation of these issues began in 2012, before he reported to his separating command and included visits to a Navy psychologist.  A 19 February 2013 medical note annotates:  “…difficult to get consistent history-interview is different than intake paperwork he completed-Conduct/behavior problems before enlisting, shoplifting, acting out/discipline problems/interactions with law enforcement/lost driving privileges for five years due to 19 moving violations…getting angry when talked to about drinking, and frequent drinking before age 18.”  This same medical note also annotates significant marital relationship issues “… [u]sually precipitated by his rageful behavior which intensifies when he drinks.”

After an exhaustive review of the evidence and the Applicants testimony the NDRB found that failing to pay for food and drink at a local restaurant in a timely manner, disorderly conduct, and resisting arrest were all conscious decisions that violate the tenants of honorable and faithful service.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied based on this issue.

9-10:  (Decisional) (Board Issue) ()  .  The NDRB considered the Applicant’s service connected disabilities including cognitive defects in motor slowing due to decompression sickness and hypoxic episodes as contributing factors to his performance decline and misconduct events during his final months of enlistment.  An extensive review of the Applicant’s record revealed that he had progressed satisfactorily in his rate, had been awarded a good conduct medal during his enlistment, and had been awarded a Navy and Marine Corps Achievement medal for superior service during Operation UNIFIED RESPONSE.  The Applicant’s performance of duties as a Navy diver presented a higher degree of danger than is normally faced by other service personnel.  The record of evidence clearly shows the Applicant was engaged in hazardous service that resulted in a definite, documented, causal relationship between his hazardous service and his resulting disabilities.  The NDRB notes that Department of Defense Combat Related Special Compensation Board determinations strongly consider the merits of duties that include, but are not limited to: aerial flight, parachute duty, demolition duty (EOD), handling/destruction of chemical or biological hazards, experimental stress duty, diving duty, vessel boarding while at sea, search and rescue/recovery operations, altitude chamber/centrifuge/aircraft decompression.  While the fact that the Applicant incurred his disabilities from his hazardous service is not sufficient by itself to support an upgrade determination, the NDRB reviewed the totality of his service record, the start date of his mental health counseling and evaluation, the manifestation dates of his misconduct, and his post-service actions and treatment records with respect to the equity of his discharge characterization and narrative reason for separation.  After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his testimony, the written character statements provided, and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds due to his service connected cognitive defects.  The NDRB voted unanimously to upgrade the characterization of service and to change the narrative reason for separation.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on matters of equity related to the Applicant’s post-service diagnoses of medical conditions related to his hazardous duty diving operations, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to .

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE-CODE” is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023