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NAVY | DRB | 2007_Navy | ND0700247
Original file (ND0700247.rtf) Auto-classification: Denied
ex-AC2, USN
ND07-00247
Current Discharge and Applicant’s Request
Application Received: 20061227   Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT-MARTIAL Authority: MILPERSMAN 1910-106

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Employment Opportunities
                           2. Not afforded Alcohol Rehabilitation while in Service
                           3. Service performance

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 070927 Location:         Washington D.C. The Board found that

Discussion

 Issue 1 & 2: 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 3: ( ). Sailor s may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense or offenses for which a punitive discharge is authorized and it has been determined that the Sailor is unqualified for future military service. The Applicant, after consultation with Defense Council, willfully signed the request. Per MILPERSMAN 1910-302, the characterization of discharge will be based upon the member’s total performance of duty and conduct during the current enlistment. The Applicant had several discreditable incidents, civil and military, that were prejudicial to good order and discipline in the United States Navy . A change of Characterization of Service w ould be inappropriate.




Summary of Service

 Prior Service:
 Inactive: US N R (DEP)      19900507 - 19901001              Active:          19901002 - 19950928
         19950929 - 19980910
Period of Service Under Review:
 Date of Enlistment: 19980911               Years Contracted :        Date of Discharge: 20000223
Length of Service : 01 Yrs 05 Mths 13 D ys          Lost Time : Days UA: 19 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 56          Highest Rank /Rate : AC2
Evaluation marks (# of occasions):       Performance: 3.0 ( 2 )       Behavior: 2.5 ( 2 )          OTA: 2.64
Awards and Decorations ( per DD 214): MERITORIOUS UNIT COMMENDATION, SECOND GOOD CONDUCT AWARD FOR PERIOD ENDING 99OCT11, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIS SERVICE MEDAL, SEA SERVICE DEPLOYEMENT RIBBON

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

 19990730:        Arrested in Fresno, CA by civilian authorities. [Extracted from Evaluation Report and Counseling Record dated 20000216.]

 19990806:        Arrested in Fresno, CA by civilian authorities. [Extracted from Evaluation Report and Counseling Record dated 20000216.

19991003:        Arrested in Fresno, CA by civilian authorities. [Extracted from Evaluation Report and Counseling Record dated 20000216.

20000203:        Arrested in Fresno, CA by civilian authorities. [Extracted from Evaluation Report and Counseling Record dated 20000216.

20000204:        Applicant to unauthorized absence. [Extracted from Evaluation Report and Counseling Record dated 20000216.

20002007:        Applicant from unauthorized absence (4 days). [Extracted from Evaluation Report and Counseling Record dated 20000216.
Discharge Process

 Charge(s) Preferred: 19991217
Charge(s) and Specification(s):
          Article 86 : Unauthorized absence from 0730, 19990809 to 1410, 19990824 (15 days) .
         Article 89 : Behave himself with disrespect toward Lieutenant W _ by treating Lieutenant in a contemptious manner and being argumentative while being counseled.
          Article 92: Violate a lawful general order on 19990902 by wrongfully failing to inform Commanding Officer of his arrest by civil authorities on 19990730 for public intoxication and 19990807 for driving under the influence of alcohol and driving on a license that has been suspended for driving under the influence.
         Article 111: Physically control a vehicle while drunk on 19990807.
         Article 134: Drunk in public on 19990730.
Date Applicant Submitted SILT request:            20000120
         Consulted with or Waived Counsel:                
         Acknowledged Understanding Elements:    
         Acknowledged Guilt to:                     Article(s) 86. 89, 92
                  BCD/DD authorized for offense(s)        
         Acknowledged Consequences of OTH:       
         Type of Characterization Requested:     

Commanding Officer Recommendation (date):        NOT FOUND IN RECORD
Separation Authority (date):                       COMMANDING OFFICER, NAVAL AIR STATION, LEMOORE ( 20000202 )
          Reason for Discharge directed:           
         Characterization directed:                        
Date Applicant Discharged :                         20000223

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) Superior Court of California, County of Fresno, Central Division, Criminal minute order and commitment papers

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec ember 1997 until 10 July 2000, Article 1910-106, 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 of the UCMJ, Article s 89 and 92.




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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