ex-HR, USN
                                 ND07-00700

                  Current Discharge and Applicant’s Request

Application Received:  20070501   Characterization Received:
Narrative Reason:  COURT MARTIAL CONVICTION  Authority:  MILPERSMAN 3640420

Applicant’s Request:   Characterization change to:
                 Narrative Reason change to:
Applicant’s Issues:    1.  Post service

                                  Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COURT MARTIAL CONVICTION.

Date:  20071213              Location:  Washington D.C
Representation:

                                 Discussion
Issue 1 (Clemency).  The Applicant admits that he was AWOL and under the
influence of drugs and alcohol during his period of absence, but has not
had any significant problems with the law since being discharged.  The
Applicant also contends that he has been attending church weekly and is
enrolled in college and, therefore is requesting a general discharge.  In
response to the Applicant’s 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.
The Applicant’s case was considered under the pertinent standards of equity
to determine if any factors in this particular case merited clemency.  The
NDRB found the evidence of record did not contain sufficient post service,
mitigating or extenuating factors to offset the seriousness of the offense
for which the bad conduct discharge was awarded.  Applicant did not produce
any evidence of educational accomplishments, a verifiable and continuous
employment record, documentation of community service, or certification of
non-involvement with civil authorities.  Accordingly, the reason for
discharge, conviction by special court-martial, is most appropriate.

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, Court-Martial
proceedings, Discharge Process and evidence submitted by the Applicant, the
Board found that clemency was not warranted and that the sentence awarded
the Applicant at his court-martial was appropriate for the offenses that he
committed.

                             Summary of Service

Prior Service:
Inactive: USNR (DEP)   19880311 - 19880502         Active:    19880503 -
19911015

Period of Service Under Review:
Date of Enlistment: 19911016 Years Contracted:  ; Extension:        Date of
Discharge:  19970508
Length of Service:  05  Yrs  06  Mths  22  Dys     Lost Time:  Days UA:  94
 Days of Pre-Trial Confined:  82
Education Level:       Age at Enlistment:    AFQT:  68   Highest Rank/Rate:
 HM2
Evaluation marks (# of occasions):      Performance:  3.4(5)  Behavior:
3.5(6)       OTA:  3.63
Awards and Decorations (per DD 214):  NDSM, SSDR, FMFR, GCA, EPB, SRB






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

19911016:   Reenlisted this date for a term of 6 years.

19940411:   NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation.
      Awarded - FOP ($657.00) for (2 months) suspended for 6 months; RIR (E-
           4) suspended for 6 months; Extra duties (30 days).

19950222:   NJP -- Viol UCMJ Art. 92 – Dereliction in the performance of
           duties; viol UCMJ Art. 86 (2 Specs), Absent without leave 0715
           19941011 until 0715, 19941012 and 1200, 19950104 until 1700,
           19950105.
      Awarded - FOP ($567.00) for (2 months); RIR (E-3); Extra duties (30
           days).

19950316:   NJP -- Viol UCMJ Art. 86 – Absent without leave.
      Awarded - FOP ($478.00) for (2 months) suspended for 6 months; RIR (E-
           2) suspended for 6 months; Extra duties (30 days).

19950710:   Applicant failed to appear in court as required by a duly
           executed criminal summon.  Applicant arrested and bond set at
           $100.00 [Extracted from CO’s message dtd 19950817].

19950726:   Administrative Discharge Board held this date and by a
           unanimous vote of 3 to 1 recommended separation, by a vote of 2
           to1 recommended characterization be General (Under Honorable
           Conditions) [Extracted from Record of Trial].

19950817:   Commanding Officer, Naval Hospital, P.O Box 10100, Camp
           Lejeune, NC recommended to Chief of Naval Personnel (PERS-83)
           that applicant be administratively separated by reason of
           misconduct due to a pattern of misconduct [Extracted from Record
           of Trial].

19960104:   Applicant to pre-trial confinement.

19960325:   Applicant from pre-trial confinement.


                              Discharge Process

SPCM: Charge(s) and Specification(s):  Article 86, (2 Specs) Spec 1: Go UA
from unit 19951002-19951010; Spec 2: Absent from unit 19951010 until
19960104; Article 112a, Wrongfully used marijuana between 199508 and
19950927.
Preferred:  19960215   Court-martial:  19960326    Findings:  Guilty of
Article(s) 86, 112a
Sentence:  BCD; RIR E-1           CA action:  19960807
NC&PB Action:  NONE    Clemency: NONE SUBMITTED    Parole:     Restoration:

Appellate Review Complete:  19970507    BCD ordered executed:  19970508
SSPCMCO No. 97-829
Applicant Discharged:  19970508

      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 14, effective

03 Oct 96 until 14 Dec 98, 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 II, Para 211,
Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503,
Equity.






                  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, provided 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 granted 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.

Employment/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