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NAVY | DRB | 2007_Navy | ND0701121
Original file (ND0701121.rtf) Auto-classification: Denied
ex-SR, USNR
ND07-01121


Current Discharge and Applicant’s Request

Application Received: 20070816                                       Characterization Received:
Narrative Reason: COURT-MARTIAL CONVICTION       Authority: MILPERSMAN 3640420

Applicant’s Request:    
Characterization change to:
                           Narrative Reason change: MERCY, CLEMENCY
Applicant’s Issues:      1. Clemency

Decision

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

Date: 2008 0117             Location: Washington D.C         R epresentation :


Discussion


Issue 1 (
). 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 claims that he deserted because he could not deal with the stress resulting from an injury he received while serving aboard ship, and claims good post-service conduct in the years since his discharge . The Board noted that the Applicant deserted his ship and the Navy for over 14 years, and only returned because he was apprehended . After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that discharge awarded the Applicant at his court-martial was appropriate for the offenses he committed.

Summary of Service

Prior Service:
Inactive: USNR (DEP)     19780609 - 19780611              Active:         
Period of Service Under Review:
Date of Enlistment: 19780612               Years Contracted : ; Extension:            Date of Discharge: 19941215
Length of Service: 16 Yrs 06 Mths 04 D ys                                   Lost Time: 5256 Dys UA, 40 Dys Confinement
Education Level:
        Age at Enlistment:       AFQT: 53          Highest Rank/Rate: SA
Evaluation marks (# of occasions):       Performance:
2.8 ( 1 )    Behavior: ( 3.4 ) 1                  OTA: 3.2
Awards and Decorations (per DD 214):
NONE

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

19790129 :         To unauthorized absence.

19790204:        From unauthorized absence (6 days).


19790206 :        NJP – Violation of UCMJ Article s 86, 92
         Awarded - RIR (
) , susp ; Restr ( 45 days); Extra duties ( 45 days).

19790222 :        NJP – Violation of UCMJ Article s 80, 95
         Awarded - RIR (
); Restr ( 10 days); Extra duties ( 10 days).

19790301 :        NJP – Violation of UCMJ Article s 86, 95.
         Awarded - FOP (
50.00 for 2 months); Restr ( 20 days); Extra duties ( 20 days).

19790427:        Applicant submitted request for hardship discharge due to mother’s illness.

19790510:        CO recommended approval of hardship discharge request.

19790530:        CHNAVPERS regretfully disapproved hardship discharge request as not meeting criteria.

19790604
:        NJP – Violation of UCMJ Article 86, 91
         Awarded - Restr (
30 days); Extra duties ( 30 days).

19790630 :         To unauthorized absence.

19931113:        From unauthorized absence (5250 days/apprehended).


Discharge Process

Charge(s) and Specification(s):   Article 85 , Absent with intent to remain away permanently 19790630 - 19931113
         Article 134 , Break restriction on 19790630
Preferred: 19810303       Court-martial: 19931223            Findings: Guilty Article(s) 85, 134
Sentence: BCD; Conf 40 ; FOP $500.00       CA action: 19940224      NC&PB Action: NONE FOUND IN RECORD       
Appellate Review Complete:
19941130                BCD ordered executed: 19941215 SSPCMCO No. 94-1724
Applicant Discharged:
19941215

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 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, 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

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