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NAVY | DRB | 2006_Navy | ND0601034

Original file (ND0601034.rtf) Auto-classification: Denied

ex-SR, USN
ND06-01034

Current Discharge and Applicant’s Request :

Application Received:                               20 060801
Narrative Reason for Separation:
Character of Service:                                BAD CONDUCT
Discharge Authority :                                milpersman 3640420
Last Duty Assignment/ Command at Discharge:       uss mobile (lka 115 )

Applicant’s Request:
         Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:                                              DESIGNATED

Decision:

Date of Decision:                                             20 070427
The Discharge shall remain:                         BAD CONDUCT


The Board found that clemency was:
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Discharge Package /Record of Trial Complete:

Summary of Service :

Prior Service:
Inactive:                                            NONE
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19901018
Years Contracted :                                   ;
Date of Discharge:                                  19930921
Length of Service:                                  01 Yrs 10 Mos 28 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      : 53
                                                      : 42

Education Level:
Age at this Enlistment:
AFQT:                                                 34
Highest Rate/Rank:                                   SN

Performance Evaluation Averages (number of marks):
Performance /Behavior/OTA :                          3. 4 (5) 3. 0 (5) 3.16
         Extracted from: Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
NAVY UNIT COMMENDATION/SEA SERVICE DEPLOYMENT RIBBON/NATIONAL DEFENSE SERVICE MEDAL/SOUTHWEST ASIA SERVICE MEDAL WITH BRONZE STAR

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19901024 :        Applicant reported for active duty.

19901025 :         Applicant briefed on Navy's policy of drug and alcohol abuse.

19901029:        Counseled: You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Jul 1990 assault, Gary, IN. No charges filed. August 1985 , disobeying traffic signal, Gary, IN. Paid $50.00. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

19911213:        Retention Warning: Advised of deficiency (Your possession of two military identification car d s was unauthorized and made your planned intentions with respect to this matter questionable.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920109 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence.
         Award: Forfeiture of $150 for 1 month, restriction and extra duty for 15 days, reduction to E-1. Reduction suspended for 3 months.
         No indication of appeal in the record.

19920114:        Retention Warning: Advised of deficiency ( unauthorized absence shows very poor judgment , could have resulted in missing ship’s departure and is prejudicial to good order and discipline. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920626 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence.
         Article 87 : Missing ship’s movement.
         Award: Forfeiture of $ 454 for 1 month, restriction and extra duty for 30 days , reduction to E-2. Reduction and forfeiture suspended for 4 months.
         No indication of appeal in the record.

19920714:        Retention Warning: Advised of deficiency (Your unauthorized absence shows very poor judgment on your part and resulted in you missing ship’s movement and is prejudicial to good order and discipline. This type of action will not be tolerated again.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920812:        Applicant to unauthorized absence 0700.

19920923:        Applicant from unauthorized absence 1245 (42 days/surrendered).

19921007:        Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 19920812 and did so remain so absent until on or about 19920923. Article 87: Miss movement of ship on 19920813.

19921007:        Charges referred to special court-martial.

19921013:        Additional c harge preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a (2 specs): Wrongfully use marijuana on 19920925. Wrongfully use cocaine on 19920925.

19921024 :        Additional c harge referred to special court-martial , t o be tried together with charges referred on 19921007.

19921029:        Applicant to unauthorized absence 2100.

199210 30 :        Applicant missed movement.

19921109:        Applicant from unauthorized absence 0900 (11 days/surrendered).

19921215 :        Special Court Martial [19921125 and 199212 21 ] :
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence 19920812 until on or about 19920923 .
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missing movement by neglect on or about 19920813.
         Charge III: violation of the UCMJ, Article 112a (2 specifications) :
         Specification 1: Wrongful us e of marijuana on or about 19920925.
         Specification 2: Wrongful use cocaine on or about 19920925.
         Findings: to Charge s and specifications thereunder, guilty.
         Sentence: C onfinement for 42 days, forfeiture of $ 5 00 per month for 2 months, reduction to E-1 , and a bad conduct discharge.
         CA 19930315 : Sentence approved and ordered executed, except for bad conduct discharge.

19921221:        Applicant to appellate leave.

19930628:        Applicant requests case be withdrawn from appellate review.

19930803:        NMCCMR grants request for withdrawal of case from appellate review.

19930921 :        SSPCMO 93-901 : Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service:
         Service/Medical Record :                            13
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               1
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            13

D escription of Other Documentation: None.

Discussion

P ropriety and Equity
Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

Applicant’s Issues (as summarized by the NDRB) :
1. Treated unfairly by command (see medical records).

Acceptance of Applicant’s Issues:
The Board accepted the Applicant’s i ssue for consideration.

Issue (Equity). The Board found nothing in the record that indicated that he was not responsible for his misconduct or treated unfairly by his command . The Applicant’s medical records indicate th at he was identified and evaluated as alcohol dependent and recommended for rehabilitation treatment, shortly before going to a period of unauthorized absence during which he missed movement and used marijuana and cocaine. If anything, the Applicant’s own misconduct prevented him from obtaining further medical care as may have been required to rehabilitate the Applicant’s alcohol problem. Relief is not warranted on this issue.

Minority Opinion

None .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL

B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II , Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety , and Para 503, Equity.

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 86, Absence without leave greater than 30 days; Article 87, Missing movement, and Article 112a, Wrongful use, possession, etc., of controlled substances.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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 . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/ RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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NAVY | DRB | 2006_Navy | ND0601034

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