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NAVY | DRB | 2007_Navy | ND0700631

Original file (ND0700631.rtf) Auto-classification: Denied

ex-HM2, USN
ND07-00631

Current Discharge and Applicant’s Request

Application Received: 20070418 Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT-MARTIAL Authority: MILPERSMAN 1910-106

Applicant’s Request:      Characterization change to:
                           Narrative R eason change:

Applicant’s Issues:       1. No issues submitted.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARITAL .

Date: 20 071129                      Location: Washington D.C          R epresentation :

Discussion

The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the n aval service. 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 by his counsel. Furthermore, the Applicant admitted guilt to the chargers preferred against him. He certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19860630 - 19860812
A ctive:          19860813 - 19890413
                  19890414 - 19960613
                  19960614 - 19990916

Period of Service Under Review:
Date of Enlistment: 19990917               Years Contracted :                 Date of Discharge: 20010504
Length of Service : 01 Yrs 07 Mths 18 D ys                                     Lost Time :
Education Level:         Age at Enlistment:       AFQT: 31          Highest Rank /Rate : HM2
Evaluation marks (# of occasions):       Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )                 OTA: 3.14 (3)
Awards and Decorations ( per DD 214): NAM, NUCR, NMUC, GCM (4) , NFMFSR, NDSM, OSR (3) , SSDR

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

19990917:        Applicant reenlisted for 3 years.

Discharge Process

Charge Preferred:                                   20010323
Charge and Specification :                                    Article 134 (solicit another serviceman to commit sodomy)
Date Applicant Submitted SILT request:            20010402
         Consulted with or Waived Counsel:                 Consulted
         Acknowledged Understanding Elements:
         Ack nowledged Guilt to:                     Article 134
                  BCD/DD authorized for offense
         Acknowledged Consequences of OTH:
         Type of Characterization Requested:      or GENERAL ( UNDER HONORABLE CONDITIONS )

Co mmanding Officer Recommendation (date):        ( 20010424 )
Separation Authority (date):                       COMMANDER, 1 ^ST FORCE SERVICE SUPPORT GROUP ( 20010430 )
         Reason for Discharge directed:
         Characterization directed:
Date Applicant Discharged :                         20010504

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) Clipping from Washington Post

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until 21 August 2002,
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 134 .

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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NAVY | DRB | 2007_Navy | ND0700631

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