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NAVY | DRB | 2009_Navy | ND0901476
Original file (ND0901476.rtf) Auto-classification: Denied

ex-BMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090511
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420 COURT MARTIAL

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19880815 - 19880828     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19880829     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19940718      Highest Rank/Rate: BM SN
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 26
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.6 ( 3 )        OTA: 3.00

Awards and Decorations ( per DD 214):      BATTLE”E ”

NJP :
- 19890512 :       Article 86 (Absent from unit)
         Awarded : 30 DAYS CC Susp ended:

- 19900309 :       Article 86 (Absent from unit), 4 specifications
         Article 92 (Failure to obey other lawful order)
         Awarded : Susp ended:

- 19900503 :       Article 92 (Failure to obey other lawful order)
         Awarded : Susp ended:

- 19901121 :       Article 92 (Disobeying a lawful order)
         Awarded : Susp ended:

- 19920121 :       Article 86 (Unauthorized absence)
         Awarded : Susp ended:

- 19920220 :       Article 134 (Drunk on station)
         Awarded : Susp ended:

- 19920715 :       Article (Absent from unit 19920701-19920706)
         Article 112 (Drunk on duty 19920709)
         Article 134 (Drunk and disorderly 19920708)
          Awarded : Susp ended:

S CM :



SPCM:

- 19920918 :       Art icle (Failure to go to appointed place of duty), 11 specifications
         Article 92 (Failure to obey a lawful order), 8 specifications
         Specification 1: Riding in a privately owned motor vehicle while in a restricted status 19920717
         Specification 2: Wearing civilian clothing while in a restricted status on 19920717
         Specification 3: Consuming alcoholic beverages while in a restricted status on 19920717
         Specification 4: Failing to remain in assigned barracks room between the hours of 2230 and 0500 while in a restricted status 19920731
         Specification 5: Possessing and consuming alcoholic beverages while in a restricted status on 19920731
         Specification 6: Receiving a visitor without prior approval while in a restricted status
         Specification 7: Failing to remain in assigned barracks room between the hours of 2230 and 0500 while in a restricted status 19920804
          Specification 8: Consuming alcoholic beverages while in a restricted status on 19920804
       Article 134, 2 specifications
         Specification 1: Breaking restriction
         Specification 2: Communication of a threat to injure 19920803
         Sentence : CONF 90 days (19920804-19920916) (19920918-19921016) BCD

C C :

Retention Warning Counseling :

- 19890312 :       For violation UCMJ Article 134, Drunkenness incapacitated for the performance of duties
- 19900309 :       For violation of the UCMJ, Article 86, Absent from unit, Article 92, failure to obey other lawful order


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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

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 .

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 .




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

Applicant’s Issues

 1. Needs military assistance.
2. Has put his life back together.
Decision

Date: 20 10 0204             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 and the reason for discharg e if such change is warranted. 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. 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. 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 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 included two NAVPERS 1070/613 (Page 13) warnings, seven nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave, seven specifications including absent from unit 6x), Article 92 ( Failure to obey lawful order, three specifications), Article 112 (Drunk on duty), and Article 134 (Drunk and disorderly ); and one special court-martial (SPCM) for violations of the UCMJ: Article 86 ( Failure to go to appointed place of duty, eleven specifications), Article 92 (Failure to obey a lawful order, eight specifications), and Article 134 (Breaking restriction and Communication of a threat to injure). At the SPCM, t he Applicant was found guilty of all but one of the charges , and subsequently sentenced with a bad-conduct discharge.

Issue 1 : (Nondecisional) The Applicant needs military assistance. 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.

Issue 2 : (Decisional) ( ) . The Applicant contends he has put his life back to gether since being discharged. He provided several certificates of achievement and training, and documentation from the New York Job Center Notice of Decision for public assistance, food stamps, and medical assistance, and the New York City Way activity history. The NDRB considers post-service conduct when granting clemency to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. Unfortunately, the Applicant did not provide sufficient post-service documentary evidence for the NDRB to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate 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 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 . However, even if the Applicant could have produced additional evidence to support clemency based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alon e does not guarantee clemency.

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 is not eligible for a personal appearance hearing since fifteen years has elapsed since the date of his discharge. T he Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.


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 Disabled American 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 their 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.
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 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 BCNR can grant this type of narrative reason change.

 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.

Post-Service Conduct : 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 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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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