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NAVY | DRB | 2009_Navy | ND0900860
Original file (ND0900860.rtf) Auto-classification: Denied

ex-EOCR, USN
Current Discharge and Applicant’s Request
Application Received: 20090303
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)        19921024 - 19930405     Active:           19930406 - 19931015
         USNR     19931015 - 19950301                        19950302 - 20000128
                                            20000129 - 20020127
                          
Period of Service Under Review:
Date of Enlistment: 20020128     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090108      Highest Rank/Rate: SCW
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 4.0 ( 6)      Behavior: 3.7 ( 6)       OT A: 3.72

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (4) (5) (3) (4)

Periods of UA /C ONF :

NJP :     S CM :   

SPCM:

- 20070830 :       Article 112a (Wrongful use of cocaine a controlled substance - 3 specifications )
        Article 92 (Violation of a lawful general regulation by fraternizing with a third class petty officer).
         Sentence : BCD; RIR-E1; FOP; CONF 12 Months (20070830-20080605 (280 Days)) .

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         , “ 19701219 ”

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:       
         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), Change 12, effective 19 September 2005 until Present, 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 .

B. 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 .

C. 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 112a .




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

Applicant’s Issues

 1. Punishment to o severe.
2. Prior honorable discharge and close to end of obligated service.
3 . In-service performance.
4. Medical and family problems impaired his ability to serve.
5. Post-service conduct rates consideration .
Decision

Date : 20 0 9 0827             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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service if such change is warranted. 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. 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 included one s pecial c ourt- m artial for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Violation of a lawful general order by fraternizing with a petty officer third class) and Article 112a ( Wrongful use of cocaine a controlled substance – 3 specifications). Based on the offenses committed by the Applicant, command preferred charges to a special court-martial (SPCM) . Contrary to his pleas, t he Appellant was convicted by a SPCM composed of an officer and enlisted members of fraternization and three specifications of wrongful use of cocaine. The convening authority approved the sentence as adjudged and forwarded the case to the Navy-Marine Corps Court of Criminal Appeals, which affirmed the findings and approved sentence of reduction in pay grade to E-1, confinement for 12 months, forfeiture of $867.00 pay per month for 12 months, and a bad conduct discharge.

Issues 1- 3 : ( De cisional) (Clemency) RELIEF NOT WARRANTED. In seeking a upgrade to General (Under Honorable Conditions), the Applicant contends his punishment was unfair and too harsh taking into consideration current standards, his in-service performance and his prior honorable discharge. Furthermore, the Applicant contends the punishment that he received was much worst tha n other who did serve for 15 years with distinction . The Applicant’s case was considered under the current standards of equity to determine if any factors in this particular case merited clemency. The NDRB determined based on the nature and seriousness of the offenses committed , successive “pops” for drug testing , the detrimental impact of the Applicant’s conduct on junior personnel, and his age and length of service an upgrade in the characterization of service was not warranted. Additionally, the NDRB determined the Applicant’s in-service performance was not sufficient to mitigat e the seriousness of the offenses for which the discharge was awarded .

In response to the Applicant’s contention that the punishment he received was much worst that other persons who committed the same offense, the Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.

Issue 4 : (Decisional) ( Clemency ) . The Applicant contends his medical and marital problems impaired his ability to serve and he should have been given a medical discharge because he was not qualified to serve [on active duty]. The Applicant submitted numerous in-service medical records documenting his diagnosis of low back pain, degenerative disc disease, headaches, e sophag itis chronic reflux disease , etc. B ased on a review of the Applicant’s medical records, fitness reports and character references and overall record there is no evidence to support his contention th at his medical problems interfered with his ability to perform his dut ies . Moreover, the Applicant submitted a personal statement providing specific details of his in-service accomplishments during his career and indicated that he has had “stellar military service.”

Furthermore, in regard to the Applicant’s contention that he should have been medically discharged, D epartment of D efense 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 is processed subsequently for an administrative involuntary separation or is referred to a court - martial for misconduct, the disability evaluation is suspended 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 B oard for Correction of Naval Records (B CNR ) can grant this type of narrative reason change.
Issue 5 : (Decisional) (Clemency) . The Applicant also contends that he has been a good citizen since being discharged. However, he has not presented any documentary evidence of post-service conduct for the Board’s consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that submission 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

T he Board determined the Applicant’s statement regarding post-service conduct without documentation to support the same, was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate s or relate s directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

 The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Automatic Upgrades .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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.
Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

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 NDRB 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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