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NAVY | DRB | 2007_Navy | ND0700340
Original file (ND0700340.rtf) Auto-classification: Denied
ex-SHSR, USN
ND07-00340
Current Discharge and Applicant’s Request
Application Received: 20070122                                                Characterization Received:
Narrative Reason: COURT-MARTIAL CONVICTION                         Authority: MILPERSMAN 3640420

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Clemency for u pgrade due to medical conditions due to money owed and as a nother request should have been ordered on my behalf.

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall COURT-MARTIAL .
Date: 20 071011                                               Location: Washington D.C.      

Discussion

Issue(s) 1: The Board could not respond to this issue because the meaning of it is unclear. The Board found no evidence to indicate that the Applicant’s misconduct was due to a medical condition, and could not determine what the Applicant meant by “another request. ”

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 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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ COURT-MARTIAL ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19900626 - 19900820              Active:         
Period of Service Under Review:
 Date of Enlistment: 19900821      Years Contracted : ; Extension:                   Date of Discharge: 19931207
Length of Service : 02 Yrs 07 Mths 02 D ys Lost Time : Days UA: 241 Days Confine d : UNABLE TO DETERMINE
Education Level:         Age at Enlistment:       AFQT: 38          Highest Rank /Rate : SHSA
Evaluation marks (# of occasions):       Performance: 2.8 ( 1 )       Behavior: 2.8 ( 1 )         OTA: 2.80
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

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

 19910724 :        NJP -- Viol UCMJ Art. 86 - (2 Specs), Unauthorized absence; violation of UCMJ Art. 87 – Missing ship’s movement; viol UCMJ Art. 92 – Disobeying a direct order .
         Awarded - FOP ( $ 50.00 ) for ( 2 months); Restr for ( 45 days); Extra duties ( 45 days) .
19910930 :        NJP -- Viol UCMJ Art. 92 - Violated ship’s safety/tagout procedures .
         Awarded - FOP ($ 50.00 ) for ( 2 months); Restr for ( 20 days); Extra duties ( 20 days).

 19920420 :        NJP -- Viol UCMJ Art. 86 – Unauthorized absence; viol UCMJ Art. 87 – (7 Specs), Missing ship’s movement .
         Awarded - FOP ($ 397.00 ) for ( 2 months); RIR ( E-1 ); Restr for ( 45 days); Extra duties ( 45 days).
19920810:        Drug and Alcohol Abuse Report: Marijuana abuse as a result of a unit sweep urinalysis, dependency not determined, recommended for separation not via VA Hospital.

Discharge Process

Charge(s) and Specification(s): Article 8 5 , Desertion from 19920703 until apprehended 19920828 ; Article 86 , (2 Specs), Unauthorized absence from 19920611 - 19920614 and 19920616 - 19920624; Article 112a, Wrongful use of marijuana; Article 121, (4 Specs), Larceny of personal property total value of about $749.00 .
Preferred: 19921010                Court-martial: 19921002                     Findings: Guilty of Article(s) 86, 112a, 121
Sentence: BCD; Conf 5 months ; FOP $520.00 for 5 months    CA action: 19930126      NC&PB Action: NONE
Appellate Review Complete: 19931203 BCD ordered executed: 19931207 SSPCMCO No. 93-1270 Discharged: 19931207

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) Letter from J_ B_, VA Homeless Outreach Coordinator, Veterans Shelter Residential Verification Letter, Reduced Fare Identification Card Application

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF 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)(a), Presumption Concerning Court-Martial Specifications .


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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