Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700078

Original file (ND0700078.rtf) Auto-classification: Denied

ex-SR, USN
ND07-00078

Current Discharge and Applicant’s Request:

Application Received:                               20 061023
         Characterization of Service:
         Reason for Discharge :                      COURT-MARTIAL
         Discharge Authority :                       MILPERSMAN 5815-010
         Duty Assignment/ Command at Discharge:    NAMALA WASHINGTON DC

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1. VA Benefits
                                                      2. Post service conduct (married, supports family, member of church)


Decision:

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

Date of Decision:                                            20 070830
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding BCD, The Board found clemency was:

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Issue 2 : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. However w ith 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. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. Outstanding post-service conduct, 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 is considered. The Applicant provided his statement along with 27 letters from friends, family and members of his church as documentation of his post-service conduct . The Applicant's efforts could be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Boa rd weighed the Applicant ’s post service documentation during its decision , although this alone was not sufficient to mitigate the misconduct which resulted in his characterization of service .

After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was warranted.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19970124 - 19970805
Active:

Period of Service Under Review :
Date of Enlistment:                                 19970806
Years Contracted :
Date of Discharge:                                  20010205
Length of Service
         Active:                                     3 Yrs 0 5 Mths 30 D ys ( d oes not exclude lost time)
         Time Lost During This Period:             663 Days UA /Appellant LV ; 47 Days Confinement

Education Level:
Age at this Enlistment:                                     19
AFQT:                                                 Illegible in record
Highest Rate/Rank:                                   SN

Performance Evaluation Averages (number of marks):
                                                      Performance : 3.0 Behavior : 2.0 OTA : 2.50 (1)

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

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

19970807:        Retention warning for fraudulent enlistment due to marijuana use.

19971117:        Applicant reports to USS GUNSTON HALL (LSD-44).

19980 306 :        NJP for violation s of UCMJ:
         Article 86: (2 specs), Absent without leave.
         Article 92: (2 specs), Failure to obey an order or regulation.
         Article 115: Malingering.
         Award: Forfeiture of $450.00 for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspended for 6 months), reduction to E-2.

19980604:        Forfeiture of pay, restriction and extra duty awarded at NJP on 19980306 vacated due to continued misconduct .

19980715:        Evaluation block 28: Seaman C_ (Applicant) failed to meet Navy Standards, ranked as Significant Problems.

19981010:        Applicant to USS GUNSTON HALL (LSD-44) medical for severe leg injury.

19981125:        Applicant transferred to TPU Norfolk.

19981221:        Applicant transferred to NAVPHIBASE L ittle Creek in limited duty status.

19981221:        Applicant arrested by City of Norfolk Police for false identification.

19990204:        Applicant to XOI.

19990212:        Applicant to unauthorized absence.

19990303:        Applicant from unauthorized absence.

19990419:        Applicant transferred to TPU Norfolk.

19990419:        Special Court Martial for violations of UCMJ Articles:
         86 (unauthorized absence) from 19990212 until 19990303 (apprehended) Plea: Guilty Finding: Guilty
         92 (violation of lawful order) Plea: Guilty Finding: Guilty
         134 (Possession of a false military ID card with intend to deceive) Plea: Guilty Finding: Guilty
         Award: Reduction to E-1, confinement for 60 days (47 days or pretrial confinement credit), and a bad conduct discharge.

1999 1025 :        Convening Authority approved sentence, except for bad conduct discharge and ordered executed.

Elements of Discharge: [Bad Conduct Discharge]

Date Charges Preferred:                            19990305
Charge s and Specifications:
         Article 86: Did on or about 19990204, without authority, absent himself until apprehended on or about 19990303.
         Article 92: Failed to obey a lawful order on or about 19981221 by consuming alcohol under the age of 21.
         Article 134: W rongfully posses with intent to deceive a military identification card .
Court-martial Date:                                 19990419
Findings:                                            Guilty of Articles 86, 92 and 134
Applicant requested Bad Conduct Discharge:
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                60 days
         Reduction:                                  E-1
         Forfeiture:                                 NONE
Date Applicant to Pre-trial confinement:                  19990303
Date Applicant to Confinement:                     19990419
Date Applicant from Confinement:                           19990421
Date Applicant to Voluntary Appellate Leave:     Unclear in record
Date of Convening Authority action                          19991025
NMM Court of Criminal Appeal decision:            20000830
Date Appellate Review Complete:                   20010109
Date BCD ordered executed:                         20010205 SSPCMCO No. 01-215
Date Applicant Discharged:                         20010205

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               85

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)             Letter from A_ C_, Mississippi House of Representatives, C_ P_ U. S. House of Represe nt atives, Children's Birth Certificates, Marriage License, Children's Social Security Cards .

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, 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 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 92 and 134 .

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, 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 | ND0700078

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