Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801106

Original file (ND0801106.rtf) Auto-classification: Denied

ex-AZAR, USN

Current Discharge and Applicant’s Request

Application Received: 20080410
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420 (COURT MARTIAL CONVICTION)

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USNR (DEP)        19870227 - 19870315     Active: 19870316 - 19910321 HON

Period of Service Under Review:
Date of Enlistment: 19910322     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980416      Highest Rank/Rate: AZ3
Length of Service: Y ear( s ) M onth( s ) 25 D a y ( s )
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 3.6 ( 7 )      Behavior: 3.6 ( 7 )        OTA: 3.77

Awards and Decorations (per DD 214):      wb*

Periods of UA/C ONF :

NJP: CC: Retention Warning Counseling :

SCM:
- 19941221 :       Art icle 134 (General Article)
         Sentence : CONF 45 DAYS
SPCM:

- 19970327 :       Art icle 112a (Drug use, wrongfully use cocaine), 2 specifications
         Sentence : CONF 45 DAYS RIR E-1 BCD

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19870316 TO 19910321 ”

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

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education/Training:
         Health/Medical Records:          Substance Abuse:                           Criminal Records:

Related to Post-Service Period: (cont)

         Family/Personal Status:          Community Service:                References:
Additional Statements :
From Applicant:        From Representation:    From Congress m ember :

Oth er Documentation:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until
14 December 1998, 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 .

C . 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 .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. In-service performance for 10 years.
2. Depression caused Applicant to abuse alcohol and drugs.
3. Post service conduct.

Decision
Date : 20090 430 Location: Washington D.C . R epresentation :

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

Discussion

: ( ) . The Applicant ’s representative in seeking clemency on his client’s behalf submits a statement from the Applicant, contending after completing approximately 10 years of active duty service and receiving a number of ribbons and awards, he fell into a serious depression and began abusing alcohol and drugs as an easy way out. The Applicant admits as a result of his selfish thinking he lost his wife, kids , and military career , but is now involved with the church, mentors children, improved his relations hip with his daughters , and has been accepted into 6 universities.

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. In response to the Applicant’s issue s , 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 record was marred by one SCM on 21 December 1994, for violation of the Uniform Code of Military Justice (UCMJ) : Article 134 ( General Article : Wrongfully and with intent to defraud, made long distance calls on government telephones for personal business ) and one SPCM on 27 March 1997 , for violation of the UCMJ : Article 112a (Drug use, w rongful use of cocaine ), 2 specifications.

After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments as outlined in the character references from his cousin, uncle, nephew, pastor and a church member who has known him for 8 years, the Board determined clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Therefore, relief is denied.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | 2008_Navy | ND0801106

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