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NAVY | DRB | 2009_Navy | ND0900172
Original file (ND0900172.rtf) Auto-classification: Denied

ex-BMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20081001
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20011012 - 20011120              Active:

Period of Service Under Review:
Date of Enlistment: 20011121      Period of E nlistment : Years Extension   Date of Discharge: 20051018
Length of Service : Y ear s M onth s 28 D a ys        Education Level:         Age at Enlistment:       AFQT: NFIR
Highest Rank /Rate :       BM3       Evaluation M arks: Performance:    1.0 ( 1 )   Behavior: 1.0 ( 1 )         OTA: 1.86
Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : UA: NONE / PRETRIAL CONFINEMENT: 20050818-20050918 (32 days)

NJP :
- 2002XXXX : Art icle 92 ( Failure to obey an order or regulation) N o further information found in service record ,
Extracted from Evaluation Report and Counseling Record and Report and Disposition of
Offense(s) . Exact date could not be determined.
         Awarded : NFIR Susp ended : NFIR

- 20050617 : Art icle 107 (False official statement)
Article 121 (Larceny)
 Awarded : Susp ended : Suspension vacated 20050726

20050804 :         Art icle 86 (3 specifications) (Failure to go at the time prescribed)
         Awarded : Susp ended : Suspension vacated 20050815

S CMs : CC:

SPCM:
- 20050919 : Art icle 86 (Fail to go at the time prescribed)
         Article 128 (Unlawfully strike Seaman on the body with his hands and feet)
          Sentence : CONF FOR 5 MONTHS, RIR TO E-1, FORF Al l confinement in excess of that confinement already served will be suspended for a period of 12 months.

Retention Warnings:
- 20050624 : For false official statement and larceny.
- 20050921 : For having been screened as substance dependent on 20050829.

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 Representat ion :    From Congress m ember :

                  - Letter from Washington State Representative A. S., U. S. House of Representatives from 29 July 2008

Other Documentation (Describe) :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

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 violation of the UCMJ, Article 128 .

E. Manual for Courts-Martial 2008, Appendix 12, Maximum Punishment Chart .



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

Applicant’s Issues

 1. Misrepresented by defense counsel.
2. Commanding Officer was unfair.
3 . No one explained consequences of signing plea agreement and DD-214.

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 MISCONDUCT (SERIOUS OFFENSE) .
Discussion

 : ( ) . The Applicant contends he was not represented adequately by his defen se counsel before, during, and after his court-martial. 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 re cord of service was marred by three NJPs and one S PCM for violations of the Uniform Code of Military Justice (UCMJ): Art icle 86 ( UA, f ailure to go to an appointed place of duty at the time prescribed); Art icle 92 ( Failure to obey an order or regulation) ; Art icle 107 (False official statement); Article 121 (Larceny); and Article 128 (Unlawfully struck a Seaman on the body with his hands and feet). These v iolation s are considered serious offenses, punishable by a punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The NDRB noted the Applicant was awarded punishment at his NJPs on 17 June 2005 and 4 August 2005 , which was suspended. In both cases the suspension was later vacated due to continuing misconduct by the Applicant. The NDRB further noted the Applicant’s command elected to retain him in the N avy following each of his three NJPs , when they could have pu rsued an administrative separation.

The Applicant’s command did pursue an administrative separati on following his conviction by a S PCM for violation s of Article s 86 and Article 128. For the edification of the Applicant, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts and are not subject to review by the NDRB. The NDRB rejects the contention the Applicant was misrepresented by his defense counsel based on the lack of evidence to support the claim . The record of evidence shows the Applicant received signi fi cantly less punishment than that allowed for the offenses the Applicant committed . T he maximum punishment allowed by the Manual for Courts-Martial for violation of Article 128 (Assault consummated by battery) is confinement for six months, total forfeiture of pay, and a bad conduct discharge. Furthermore, the Applicant willing signed the pre-trial agreement which states, in part, “I have been fully advised by my defense counsel of, and I fully understand and comprehend the meaning and effect of, my guilty pleas and all attendant effects and consequences, including the possibility that I may be processed for administrative discharge from the United States Navy.” The NDRB determined the Applicant’s claim is without merit and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because his commandin g officer treated him unfairly. However, he submits no evidence to support this claim. Furthermore, the record of evidence shows the commanding officer demonstrated unusual restraint by not processing the Applicant for an administrative separation until after three NJPs and one S PCM . The NDRB determined the Applicant’s cl a im is again without merit and an upgrade would be inappropriate.

: ( Equity) . The Applicant contends he is entitled to a discharge upgrade due to his lack of training on the consequences of signing his DD-214. The record of evidence shows the Applicant was notified of the administrative discharge proceedings against him o n 20 September 2005. In his return letter acknowledging notification of the discharge proceedings , the Applicant waived his right to consult with qualified counsel and waived his right to appear before an

administrative separation board. The NDRB determined the Applicant’s contention is again without merit and an upgrade 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


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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