Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900557

Original file (ND0900557.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20090109

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:         US N R (DEP)        19990720 - 19990815     Active:

Period of Service Under Review:
Date of Enlistment: 19990816     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030902      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 59
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : 20000423-2000425 (2 DAYS)

NJP :
- 19991216:      Article 92 ( Failure to obey an order or regulation- underage drinking )
                  Awarded: Suspended:

- 20000228 :       Art icle 92 (Failure to obey an order or regulation- underage drinking)
                  Awarded : Vacated previous punishment awarded at CO’s NJP on 19991216 Susp ended :

- 20000301 :       Article 86 ( U A) 5 specifications
         Article 92 (Failure to obey an order or regulation ), 2 specifications:
         - U nderage drinking
         - Drinking while in a rest ricted status
         Article 134 (Drunk and disorderly)
         Article 128 (Assault - 2 specifications )
         Article 117 (Provoking speeches)
         Article 134 (Communication a th reat and breaking restriction - 4 specifications)
         Awarded: Suspended:

S CM : CC:

SPCM:
- 20000810 :       Art icle 86 (U A )
         Article 92 (Failure to obey an order or regulation - underage drinking ), 5 specifications
         Article 112a ( Drug abuse, wrongful use of a controlled substance: marijuana)
         Article 134 (Breaking r estriction ), 2 specifications )
         Sentence : BCD

Retention Warning Counseling:

- 19991216 :       For Article 92-Disobey a lawful general regulation by wrongfully possession an alcoholic beverage while under the age of 21

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 :

Oth er Documentation :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

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 s of the UCMJ : Article 86 (U A ) ; Article 92 (Failure to obey an order or regulation) ; Article 112a (Drug abuse, wrongful use of a controlled substance); Article 117 (Provoking speeches); Article 128 (Assault); Article 134 (Communication a threat); Article 134 (Drunk and disorderly) and Article 134 (Breaking restriction).

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

Applicant’s Issues

1. Youth and i mmaturity .
2. Mitigating c ircumstances (Family issues)
3. Post service conduct.

Decision

Date: 20 0 9 0423 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 contends his problems in the Navy can be attributed to mistakes due to his youth. 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. 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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service was marred by a retention warning and three NJP’s and a S PCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A); Article 92 (Failure to obey an order or regulation) ; Article 112a (Drug abuse, wrongful use of a controlled substance); Article 117 (Provoking speeches); Article 128 (Assault); Article 134 (Communication a threat); Article 134 (Drunk and disorderly) and Article 134 (Breaking restriction). These violations are considered serious offenses and warrant a punitive discharge if awarded as part of a sentence during a special or general court-martial. The NDRB recognizes that many of our service members are young at the time they enlist for service but still manage to serve honorably. While we understand some member’s may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct or illegal drug use. The Board determined clemency was not warranted.

: ( ) . The Applicant contends mitigating circumstances ( f amily i ssues) were a contributing factor to his misconduct in the Navy. Although the Applicant ’s family situation may have been dysfunctional, he is still accountable for his misconduct while in the Navy . T he Board determined this issue was insufficient to justify the Applicant’s misconduct and clemency was not warranted.

Issue 3: (Clemency) RELIEF NOT WARRANTED. T he NDRB is authorized to consider post-service factors in consideration if a case warrants clemency. Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are considered during Board reviews. Supporting documentation to help support post service clemency includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

As documentation supporting post service, the Applicant provide d character references, New York State documents pertaining to his childhood, a certificate from Wake County Alcohol Treatment Center, a fork lift operators license from Wilson Community College, and a Raleigh’s Bartending School Certificate as evidence on his behalf. To warrant clemency, 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 clemency. The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization
considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency would be inappropriate

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Discharge Process and evidence submitted by the Applicant, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed .

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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NAVY | DRB | 2009_Navy | ND0900557

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