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NAVY | DRB | 2007_Navy | ND0700225
Original file (ND0700225.rtf) Auto-classification: Denied
ex-QM2, USN
ND07-00225
Current Discharge and Applicant’s Request
Application Received: 20061213   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. GI Bill
                           2. Character of service
                           3. Post service conduct


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 0927                                      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 .

Issue 2 ( ): In the Applicant’s letter to the Board he states that his discharge does not properly represent his character of service. Despite a servicemember’s prior record of ser vice, certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The Applicant ’s summary of service clearly documents the Applicant ’s misconduct resulting charges being preferred to a Special Court Martial for violations of UCMJ Article s 107 (false official statements), 121(larceny), and 132 (fraud against the government) . V iolations of these Article s carry a penalty of up to a dishonorable discharge and up to five years of imprisonment for each specification , if adjudicated by a court martial . The Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his rights were thoroughly explained to him and that he had consulted counsel. Furthermore, the Applicant admitted guilt to the chargers preferred against him. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The Applicant’s conduct which forms the primary basis for determining the character ization of his service reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade to his characterization of service.

Issue 3 ( ): In the Applicant’s letter to the Board he states that he is a productive member of society. 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 base d solely on the passage of time or good conduct in civilian life subsequent to leaving the service. O utstanding 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 no documentation of post-service accomplishments. The Applicant's efforts need to 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, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in his characterization of service .

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      199605 09 - 19961112              Active:         
Period of Service Under Review:
 Date of Enlistment: 19961113      Years Contracted : ; Extension: 4 months          Date of Discharge: 20010507
Length of Service : 04 Yrs 05 Mths 25 D ys                   Lost Time :
Education Level:         Age at Enlistment:       AFQT: 80          Highest Rank /Rate : QM2
Evaluation marks (# of occasions):       Performance: 4.0                   Behavior: 3.4     OTA: 3.4 9 (5)
Awards and Decorations ( per DD 214): ENLISTED SURFACE WARFARE SPECIALIST, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), EXPERT PISTOL SHOT MEDAL, NAVY "E" RIBBON, NAVY UNIT COMMENDATION, GOOD CONDUCT MEDAL, FLAG LETTER OF COMMENDATION


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

 20000616:        Applicant extension agreement changing EAOS to 20010312.

20000916:        Applicant promoted to QM2 and signed request for BAH utilizing lease dated 20000801.
20010213:        BAH stopped.

20010309:        Special Court Marital charges preferred.

20010328:        Applicant counseled and submitted Separation In Lieu of trial request.


Discharge Process

 Charge s Preferred:                                  20010309
Charge s and Specification s:
          Article 107 – False official statement by signing an official record requesting BAH based on false Lease Agreement.
         Article 121 - Larceny of $3,741.65 BAH from 20000916 to 20010213 .
         Article 132 – Fraud against the United States by obtaining the allowance in the amount of $3,741.65.

Date Applicant Submitted SILT request:            20010328
         Consulted with or Waived Counsel:                 Consulted
         Acknowledged Understanding Elements:    
         Acknowledged Guilt to:                     All Charges
         BCD authorized for offenses              
         Acknowledged Consequences of OTH:       
        
Commanding Officer Recommendation (date):        Other than honorable (20010401)
Approval Authority:                                 Commander, Naval Surface Group MidPac, Approved request as Other                                                               than honorable, (20010411)
Date Applicant Discharged :                         20010507


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 29, effective
11 Jul 2000 until 21 Aug 2002, 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 IV , Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 s of the UCMJ, Article s 107, 121, and 132 .

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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