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NAVY | DRB | 2006_Navy | ND0601114

Original file (ND0601114.rtf) Auto-classification: Denied

ex-AR, USN
ND06-01114

Current Discharge and Applicant’s Request :

Application Received:                               20 060822
Narrative Reason for Separation:
Character of Service:
Discharge Authority :                                MILPERSMAN 58150010
Last Duty Assignment/ Command at Discharge:       TPU NAVAL AIR STATION JACKSONVILLE, FL

Applicant’s Request:
         Narrative Reason change to:                NO NE REQUESTED
         Characterization chang e to:
         Review Requested :                           *
         Representation:

Applicant’s Issues (as summarized by NDRB):

1. Misconduct caused immaturity.
2. Post-service conduct.


Decision:

Date of Decision:                                            20070719 *
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding BCD, The Board found clemency was:

By a vote of the Characterization shall .
By a vote of the Reason for Discharge shall COURT MARTIAL .

* The NDRB’s p ersonal appearance hearing scheduling notice was returned undeliverable. Applicant did not respond to email contact regarding scheduling personal appearance. Per regulation, the NDRB conducted a documentary review and Applicant has exhausted his opportunity for review by the NDRB.

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                20000406-20000410
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20000411
Years Contracted :                                   ;
Date of Discharge:                                  20040130
Length of Service:                                  03 Yrs 09 Mos 20 Days ( does not exclude lost time, if any)
         Time Lost During This Period:             104 Days          Days U A : 23       Days Confinement: 81

Education Level:
Age at this Enlistment:
AFQT:                                                 43/49
Highest Rate/Rank:                                   AA

Performance Evaluation Averages (number of marks):
                  Performance : 2.00 (1)     Behavior : 1.00 (1)        OTA : 1.83

Awards and Decorations (as listed on the DD Form 214): NONE

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

20010509 :        Summary Court-Martial .
         Charge I : V iolation of the UCMJ, Article 86 (3 specifications) .
         Specification 1 : Unauthorized absence from on or about 20010309 to 20010312.
         Specification 2: Unauthorized absence from on or about 20010317 to 20010329.
         Specification 3: Unauthorized absence from on or about 20010401 to 20010405.
         Charge II: violation of the UCMJ, Article 91: Disobeying a lawful order from a Master Chief Petty Officer on or about 20010316.
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, Forfeiture of $779.40.
         CA action 20010515: Sentence approved and ordered executed.

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

None.

Elements of Discharge: [B AD CONDUCT DISCHARGE ]

Record of Trial Complete:
Date Charges Preferred:                            20020120, 20020203, 20020301
Charge(s) and Specification(s):
         I: Article 86 : 6 specifications of absence from unit or failing to go to place of duty , various dates
         II: Article 95: 20020111, r esist apprehension
         III: Article 109: 20011027, Wrongfully damaging property of another by slashing 4 tires
         IV: Article 134: 3 specifications of impersonating a commissioned officer; 2 specifications of communicating a threat
         ADD I: Article 112a: 20011130, Wrongfully use controlled substance (marijuana)
         ADD II: Article 89: 20020111, Disrespect ful to ward superior commissioned officer
Date Charges Referred to Special Court-Martial: 20020122, 20020206, 20020301
Date (s) of Court-Martial :                                   20020207 , 20020306
Findings:        Guilty of Article(s) Charge I, Specification 6; Charge IV, Specification 3, Additional Charge 1 and specification; Additional Charge II and specification. All other charges and specifications withdrawn.
Applicant requested BCD:
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                150 days
         Reduction:                                  To E-1
         Forfeiture:                                 None
         Other:                                     None
Length of BCD S uspension:
Date Applicant to Pre-trial Confinement:                  20020111
Date Applicant from Pre-trial Confinement:                20020306
Date Applicant from Confinement:                           20020412
Date of Convening Authority action                          20020826
NMCCA Action and Date:                              Affirmed findings and sentence on 20030819
Date Appellate Review Complete:                   20031103
Date of SSPCMO ordering BCD be executed :         20040121
Date Applicant Discharged:                         20040130

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

Total Number of Pages:                            1

Applicant’s Issues (as summarized by NDRB):

1. Misconduct caused immaturity.
2. Post-service conduct.

Decisional Issues:

Issue 1 ( ). Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. While the Board does not doubt that the Applicant’s in-service misconduct demonstrated immaturity, such does not constitute a defense or excuse for his behavior. With respect to a discharge adjudged by a court-martial case, 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 the Board determined that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed and that clemency was not warranted . Relief is not warranted on this issue .

Issue 2 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant has not provided any documentation for the Board to consider in determining whether clemency was warranted. Relief is not warranted on this issue.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found th at clemency was not warranted .

Minority Opinion

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge .

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 I V, Para 403m(7), Pr esumption Concerning Court-Martial Specifications .

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 | ND0601114

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