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NAVY | DRB | 2007_Navy | ND0700008

Original file (ND0700008.rtf) Auto-classification: Denied

ex-STGSR, USN
ND07-00008

Current Discharge and Applicant’s Request:

Application Received:                               20 060829
         Characterization of Service:
         Reason for Discharge :                      CONVICTION BY SPECIAL COURT MARTIAL
         Discharge Authority :                       MILPERSMAN 3640420
         Duty Assignment/ Command at Discharge:    NCB MIRAMAR SAN DIEGO , CA

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

Representation:

Applicant’s i ssue :
1. Post Service - Equity

Decision:

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

Date of Decision:                                            20 070816
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:
Regarding BCD, The Board found clemency was:

Issue 1 ( ). The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant ’ s case. 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 should 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. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

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 the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19880107 - 1988012 4
Active:

Period of Service Under Review :
Date of Enlistment:                                 19880125
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19921231
Length of Service
         Active:                                     4 Yrs 10 Mths 5 D ys ( d oes not exclude lost time)

Time Lost During This Period:                      63 Days
Days UA:                                             3 Days
Days Confine ment: 60 Days

Education Level:
Age at this Enlistment:
AFQT:                                                 89
Highest Rate/Rank:                                   STG3

Performance Evaluation Averages (number of marks):
                                    Performance : 3.7 ( 2 ) Behavior : 3.6 ( 2 ) OTA : 3.6

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, SW ASIA SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION

Service Record Entries Related to Characterization of Service or Reason for Discharge

19880126:        Applicant briefed on Navy's policy of drug and alcohol abuse.

19900209 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence.
         Article 121: Wrongful appropriate.
         Article 134: Disorderly conduct.
         Award: Forfeiture of $454.00 for 1 month, restriction and extra duty for 15 days, reduction to E-3.
         No indication of appeal in the record.

19900209:        Retention Warning: Advised of deficiency (Violation Art 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19900212 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence.
         Article 95: Disorderly conduct.
        Article 121: Wrongful appropriate.
         Article 134: Fleeing the scene of a accident.
         Award: Forfeiture of ½ month pay for 1 month, restriction and extra duty for 30 days, reduction to E- 4 (suspended for 6 months) .
         No indication of appeal in the record.

19910105 :        NJP for violation(s) of UCMJ:
         Article 113 : Misbehavior of a sentinel.
         Article 107 : False official statement.
         Article 92: Disobeying a lawful written order.
         Article 86: Unauthorized absence.
         Award: Forfeiture of $ 445 .00 for 1 month, restriction and extra duty for 45 days, reduction to E- 3 .
         No indication of appeal in the record.

19910201 :        NJP for violation(s) of UCMJ:
         Article 112a : Use of a controlled substance.
         Award: Forfeiture of $ 422 .00 for 2 months, restriction and extra duty for 45 days, reduction to E- 2 .
         No indication of appeal in the record.

19910902:        Applicant refused VA treatment for drug and/or alcohol.

Elements of Discharge: [INVOLUNTARY]

Discharge Process :
Date Notified :                                        19910208
Reason for Discharge              -
                                    -

Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 19910418
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Commanding Officer R ecommendation (date):        ( 1991041 )
Separation Authority (date):      BUPERS WASHIGNTON DC ( 19910617 )
         Reason for discharge directed :             -
         Characterization directed:
Separation held in abeyance pending SPCM                  BUPERS WASHINGTON (19910617)
Date Applicant Discharged:                         19921231

Elements of Discharge: [Bad Conduct Discharge]

Date Charge(s) Preferred:                                   19910705
Charge(s) and Specification(s):
         Article 86 : UA from 19910531 until 19910602
         Article 112a : Wrongfully introduce marijuana onto naval installation on or about 19910519
         Article 112a: Wrongfully use cocaine and marijuana on or about 19910519.
         Article 123a: Wrongfully and unlawfully utter 16 checks from 19910419 through 19910505 in the amount of $2,150.00.
Court-martial Date:                                 19910806
Findings:                                            Guilty of Article(s) 86112123
Applicant requested Bad Conduct Discharge:
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                90 DAYS
         Reduction:                                  E-1
         Forfeiture:                                 400.00 for 3 months
         Other:
Date Applicant to Pre-trial confinement:                  19910705
Date Applicant from Pre-trial confinement:                19910806
Date Applicant to Confinement:                     19910806
Date Applicant from Confinement:                           19910905
Date Applicant to Voluntary Appellate Leave:     19910905
Date of Convening Authority action                          19911023
Date of NC&PB Action:                               NOT FOUND IN RECORD
         Clemency:
         Parole:
         Restoration:
Date Appellate Review Complete:                   199212 21
Date BCD ordered executed:                         19921231 SSPCMCO No. 9 2 -1656
Date Applicant Discharged:                         19921231

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               1

Related to Period of Service Under Review :
         From Service and/or Medical Record :                Other Records :

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                           Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant :             From Representative:
        Other Documentation (Describe)

Pertinent Regulation/Law

A . Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURTMARTIAL.

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 s 92 (Disobeying a lawful written order), 95 (Disorderly conduct), 107 (False official statement), 112a (wrongful use of a controlled substance) , 113 (Misbehavior of a sentinel) and 134 (Disorderly conduct) .

ADDENDUM: Information for the Appl icant

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, provi ded 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 grante d 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 | 2007_Navy | ND0700008

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