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NAVY | DRB | 2007_Navy | ND0700176
Original file (ND0700176.rtf) Auto-classification: Denied
ex-BM2, USN
ND07-00176
Current Discharge and Applicant’s Request

 Application Received: 20061124  
Characterization Received :
Narrative Reason: IN LIEU OF TRIAL BY COURT MARTIAL Authority: MILPERSMAN 1910-106

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change :
Applicant’s Issues:       1. Employment
                          

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL .
Date: 20 070913                     Location: Washington D.C.


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 .

In reviewing discharges the Board presumes regularity in the conduct of government al affairs , unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence . W ith regard to impropriety or inequity t here is no evidence in the record, nor has the Applicant produ ced any evidence to support his request for an upgrade in the characterization of his service . The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial. In this request the Applicant would have noted that his rights were thoroughly explained to him and that he received counsel or waived his right to consult counsel . Additionally , the Applicant must have admitted guilt to the chargers preferred against him. Based on the Applicant’s letter to the Board it is presumed that these charges would have been violation of UCMJ Article 121 ( larceny ). Finally the Applicant would have certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. Violations of UCMJ Article 121 (larceny) carry a maximum penalty of a d ishonorable d ischarge and up to 1 0 year s of imprisonment if adjudicated by a court martial . In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.



Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19981204 - 20000102              Active: 20000103 - 20031114
Period of Service Under Review:
 Date of Enlistment: 20031115      Years Contracted : NOT FOUND IN RECORD ;   Date of Discharge: 20040908
Length of Service : 0 9 Mths 25 D ys                  Lost Time :
Education Level: 12       Age at Enlistment: 1 8     AFQT: 51          Highest Rank /Rate : BM 2
Evaluation marks (# of occasions):       Performance: 4.0                   Behavior: 4.0     OTA: 4.33 (1)
Awards and Decorations ( per DD 214): GOOD CONDUCT MEDAL/NATIONAL DEFENSE SERVICE MEDAL/SEA SERVICE DEPLOYMENT RIBBON

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

 20031115:        Applicant reenlisted.

20040131:        Applicant reported to LTA Hampton Roads for duty.

20040319:        Applicant reported to NAS Corpus Christi for duty.

20040908:        Applicant discharged under other than honorable conditions in lieu of trial by court martial.


Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     NOT FOUND IN RECORD
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        NOT FOUND IN RECORD
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20040908


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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY 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 .


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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