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NAVY | DRB | 2007_Navy | ND0700050
Original file (ND0700050 .rtf) Auto-classification: Denied
ex-AR, USN
ND07-00050
Current Discharge and Applicant’s Request
Application Received:    20061012         Characterization Received:
Narrative Reason:        COURT MARTIAL Authority: MILPERSMAN 3640420

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Stress, medical condition and immaturity caused misconduct
                           2. Post-service conduct

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall COURT MARTIAL .
Date: 20 070816 Location: Washington D.C. The Board found that

Discussion

Issue 1 ( ). 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 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 clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R ( ActMar )   19871121 - 19881123     USNR (DEP) 19890131 - 19890430 COG
Period of Service Under Review:
 Date of Enlistment: 19890501      Years Contracted : ; Extension:          Date of Discharge: 19940726
Length of Service : 04 Yrs 06 Mths 12 D ys          Lost Time : 259 DAYS (per DD 214)
Education Level:         Age at Enlistment:       AFQT: 22/32       Highest Rank /Rate : AN
Evaluation marks (# of occasions):       Performance: 3.2 ( 4 )       Behavior: 3.2 ( 4 )          OTA: 3.20
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, SOUTHWEST ASIA SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 199 01129 :        Medical Board Report: 6 months limited duty due to line of duty injury .
19910416:        Medical Board Report: Fit for full duty at end of 6 month limited duty period.
19910716:        Returned to full duty.

 19910726:        Retention Warning for 7-day unauthorized absence.

 19920925:        CO's NJP -- Viol UCMJ Art. 86 (2 specs) - Unauthorized a bsence 19920818 – 19920827 and 19920830 - 19920831 . Awarded - FOP ( $392.00 ) for ( 1 months); RIR ( E-1); Restr and Extra duties for 45 days .

 19910726:        Retention Warning for unauthorized absence per NJP of 19920925.
19921022:        Medical Board Report: Not fit for full duty, referred to Physical Evaluation Board.

 19930406 :        SCM -- Viol UCMJ Art. 86 (3 specs) – UA from 19921116 – 19921123; from 19921201 – 19921202; from 19921209 - 19930221. Awarded: Confinement 25 days. CA action 19930406: Approved, ordered executed .
Discharge Process

 Date Charge(s) Preferred:                                   19930824
Charge(s) and Specification(s):                            Article 86 : Absence without leave from 19930410 - 19930723.
Court-martial Date:                                 19930909
Findings:                                            Guilty of Article(s) 86
Sentence: BAD CONDUCT DISCHARGE ; Confinement: 55 days ; Forfeiture: $500.00 for 3 months
Date of Convening Authority action                          19931124
Date of NC&PB Action: 19940113    Clemency: ; Parole: ; Restoration:      
Date Appellate Review Complete:                    19940715
Date BCD ordered executed:                         19940726 SSPCMCO No. 94-708
Date Applicant Discharged:                         19940726

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

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 (for more than 30 days) .

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 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 : 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.
Employmen t / 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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