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NAVY | DRB | 2008_Navy | ND0801671
Original file (ND0801671.rtf) Auto-classification: Denied

ex-STGSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080806
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     20010622 - 20010816              Active:

Period of Service Under Review:
 Date of Enlistment: 20010817      Period of Enlistment : Years Extension  Date of Discharge: 20050812
Length of Service: Years Months 26 D ays        Education Level:         Age at Enlistment:       AFQT: 87
Highest Rank/Rate:       STG3      Evaluation Marks: Performance:   NFIR      Behavior: NFIR    OTA: NFIR
Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:
- 20040105 : Article 92 (Violation of a lawful general regulation)
Article 106 (Destruction of government property)
Article 128 (Assault), 3 specifications:
         - Specification 1: Simple assault
         - Specification 2: Assault consummated by battery
         - Specification 3: Simple assault
Article 134 (General articles), 3 specifications:
         - Specification 1: Drunk and disorderly
         - Specification 2: Wrongful possession of a false ID card
         - Specification 3: Communicating a threat
Awarded: Suspended:

SPCM: 1
Actual Charges that were preferred for SPCM is NFIR.
Article 32 hearing with Investigating Officer’s (IO) opinion to recommend/Not Recommend to prefer initial charges:
- Article 107 (False official statement) RECOMMENDED
- Article 120 (Rape), 2 specifications NOT RECOMMENDED on both specifications
- Article 134 (Indecent Assault) NOT RECOMMENDED
- Article 134 (Alcohol to minor) RECOMMENDED
- Article 134 (Drunk and disorderly) NOT RECOMMENDED
-Additional Charges:
- Article 134 (Adultery), 2 specifications (IO) RECOMMENDED in-place of Article 120
- Article 134 (Indecent acts) IO RECOMMENDED in-place of Article 134 (Indecent assault)

Sentenced: Separation in Lieu of Trial by Court Martial

 Retention Warnings:
20040105 : For violation of a lawful general regulation, destruction of government property, simple assault (2
specifications), assault consummated by battery, drunk and disorderly, wrongful possession of an altered ID
card and communicating a threat.

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

Other Documentation (Describe):

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, 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. 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 .

D. 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 violations of the UCMJ, Articles 107 (False official statement), Article 134 (Adultery), Article 134 (Indecent Acts), and Article 134 (Alcohol to minor).



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

Applicant’s Issues
1. Educational opportunities.
2. Discharge was unjust.
Decision

Date: 2008 1120            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends his discharge was unjust due to mitigating circumstances surrounding the events that led to his discharge. 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. The Applicant’s record of service was marred by a retention warning and 1 NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Violation of a lawful general regulation), Article 106 (Destruction of government property), Article 128 (Assault - 3 specifications) and three specifications of Article 134 (Drunk and disorderly, Wrongful possession of a false ID card, and Communicating a threat). The Applicant was also preferred to a SPCM for various charges for violations of the UCMJ, such as: Article 107 (False official statement), Article 120 (Rape – 2 specifications), and up to 5 specifications of Article 134 (Indecent Assault, Alcohol to minor, Drunk and disorderly, Adultery and Indecent Acts). These violations, whether found guilty at a NJP or preferred to a court-martial are considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant requested to be separated in lieu of standing trial by court-martial.
        
The Applicant has requested an upgrade in his discharge characterization to “Honorable”. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a Sailor. The Board acknowledges the misconduct as a significant negative aspect of the Applicant’s overall service conduct and determined the awarded characterization was appropriate. While the Applicant provided a lengthy explanation to justify his innocence and actions the Board acknowledged this statement was not compelling enough and determined an upgrade would be inappropriate. The Applicant’s explanation would have been best served by being presented in a trial by court-martial where the government’s proof of guilt is more stringent and the alleged charges and established facts could have been discussed and argued by legal counsel. Instead, he decided to separate from the service in light of all the charges against him.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; continued higher education and character witness statements. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable
discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the personal statement provided on the DD Form-293, the Applicant only provided documents from his military service; to include documents pertaining to his pending SPCM (before his Separation In Lieu of Trial agreement) and character references. However, to warrant an upgrade to “Honorable” the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, 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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