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NAVY | DRB | 2007_Navy | ND0700198
Original file (ND0700198.rtf) Auto-classification: Denied
ex-AR, USN
ND07-00198
Current Discharge and Applicant’s Request
Application Received: 20061205   Characterization Received:
Narrative Reason: COURT-MARTIAL Authority: MILPERSMAN 5815-010

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Medical issues led to unauthorized absences

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall COURT MARTIAL .
Date: 20 070830                                       Location: Washington D.C.

Discussion

Issue 1. In response to the Applicant’s issue, 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, issue submitted, and post service accomplishments, the Board determined that the Applicant’s diagnosis did not provide grounds for misconduct, clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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 (DEP)      19960625 - 19970615              Active:
Period of Service Under Review:
 Date of Enlistment: 19970616      Years Contracted : ; Extension:   Date of Discharge: 20040728
Length of Service : 07 Yrs 01 Mths 14 D ys Lost Time : Days UA: 272 Days Confine d : UNABLE TO DETERMINE
Education Level:         Age at Enlistment:       AFQT: 55          Highest Rank /Rate : AN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A     OTA: N/A
Awards and Decorations ( per DD 214): M-16A RIFLE MARKSMANSHIP RIBBON, BATTLE "E" RIBBON

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

 1998061 9 :        Medical Record: Reason for visit: Seen in Newport Clinic while on leave for URI. Incidental finding of “Cystic” lesion 10 th rib posterior on (R), asymptomatic. Please evaluate prior to underway of 19980622.
         Diagnosis: R post 10 th rib “cyst” on CXR for “URI”.
         Recommendation: CT of chest when return from planned 6 week deployment.

19980803:        Applicant to unauthorized absence 0700.

19980805:        Applicant from unauthorized absence 2359 (2 days/surrendered).

19981030:        Applicant to unauthorized absence 0715.

 19990216:        Applicant from unauthorized absence 1512 ( 109 days/surrendered).
19990305 :        SCM -- Viol UCMJ Art. 86: Unauthorized absence from 0715, 19981030 until 1521, 19990216, Art. 87 - Missing ship’s movement through design on 19991106. Awarded - FOP ( $600.00 ) for ( 1 month); RIR ( E-1 ); Restr (60 days). CA action: 19990308: Approved, ordered executed.

19990306:        Medical Record: Reason for visit: Follow up of rib lesion. Applicant was scheduled for surgery 4 months ago; however he went UA and never had surgery.
         Diagnosis: Cystic chest lesion.
         Recommendation: … Applicant needs to be returned to CONUS for surgery. Will send consult to NNMC …

19990318:        Medical Record: Applicant received surgery for right ninth rib lesion.
Discharge Process

 Charge(s) and Specification(s): Article 86 , Unauthorized absence from 19990408 until apprehended 19990915 (161 days) ; Article 87 (3 specs ), (1) Miss movement on 19990412, (2) Miss movement on 19990901, (3) Missed movement on 19990911 .
 Preferred: 19991004                Court-martial: 1991022             Findings: Guilty of Article(s) 86 and 87 (1 spec)
Sentence: BCD; Conf 75 days ; FOP $633.00 for 2 months     CA action: 20000608       NC&PB Action: WAIVED
Appellate Review Complete: 20040719       BCD ordered executed: 20040723 SSPCMCO No. 04-0854
Applicant Discharged: 20040728

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) Letters to and from United States Senate

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, 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 86 , Absence without leave (for more than 30 days); and Article 87, Missing movement .

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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