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NAVY | DRB | 2008_Navy | ND0801660
Original file (ND0801660.rtf) Auto-classification: Denied

ex-RMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20080804
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19910626 - 19920224                 Active:

Period of Service Under Review:
Date of Enlistment: 19920225     Period of E nlistment : Years Extension          Date of Discharge: 19960926
Length of Service : Y ear s M onth s 05 D a ys       Education Level:        Age at Enlistment:     AFQT: 62
Highest Rank /Rate : RM3   Evaluation M arks: Performance:   3.7 ( 3 )          Behavior: 3.8 ( 3 )        OTA: 3.86
Awards and Decorations ( per DD 214): , CGSOSM,CGMUC

Periods of UA /C ONF : 19941103-19941214 ( 41 days)
19941215-19941222 ( 7 days)
 19950203-19950308 ( 33 days)

NJP : S CM : CC: Retention Warnings:

SPCM:
- 19950203 : Art icle 86 (U A)
Article 112a ( Drug use, w rongful use of marijuana)
Article 134 ( B reaking restriction)
         Sentence : BCD; CONF, RIR TO E-1, FOP

Types of Documents Submitted/reviewed

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

                  - Record of Trial from 3 February 1995

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Other Documentation (Describe) :







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

Applicant’s Issues

 1. Record of service.
2. Medical issues.
Decision

Date : 20 08 1106             Location: Washington D.C .        R epresentation :

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

 Issues 1-2: (Equity) RELIEF WARRANTED. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts . The Applicant’s record of service was marred by conviction at a SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 112a (Drug use), and Article 134 (Breaking restriction). As a result of the aforementioned, the Applicant was awarded a “Bad Conduct Discharge”.

The Applicant’s case was considered by the NDRB under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The re ason for discharge as convicted by special court-martial was appropriate. However, t he NDRB found the evidence of record did contain sufficient extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The Applicant was awarded a BCD by the SPCM for infractions of Articles which are considered “serious offenses.” In reviewing this particular case it was determined while the offenses were serious, they did not warrant a “Bad Conduct Discharge”. The SPCM was based on related incidents involving UA, use of marijuana, and breaking restriction. While these offenses can not be tolerated in the service, the Applicant had previous not been made subject of any disciplinary action and these offense were all inter-related. Based on similar cases reviewed by the NDRB and the awarded discharge characterization those cases received for offenses of greater, and lesser, severity, t he NDRB determined clemency was warranted in the Applicant’s case. However, the nature of misconduct limited the NDRB’s clemency to upgrading the characterization of service from “Bad Conduct” to “Under Other Than Honorable C onditions ” . The Board determined based on this misconduct an upgrade to “Honorable ” would be inappropriate.

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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 2 October 1996, 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 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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