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NAVY | DRB | 2010_Navy | ND1000196
Original file (ND1000196.rtf) Auto-classification: Denied

ex-ABEAR, USN
Current Discharge and Applicant’s Request
Application Received: 20091022
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)        20011009 - 20011119     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050225      Highest Rank/Rate: ABEAN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

NJP :

S CM :

SPCM:

- 20030903 :       Art icle 86 (Unauthorized absence), 6 specifications
         Specification 1: Unauthorized absence 20030606-20030725 , 49 days
         Specification 2: Unauthorized absence 20030416-20030522 , 36 days
         Specification 3: Unauthorized absence 20030312-20030331 , 20 days
         Specification 4: Unauthorized absence 20021106-20021127 , 21 days
         Specification 5: Unauthorized absence 20021025-20021028 , 3 days
         Specification 6: Unauthorized absence 20020927-20021024 , 27 days
         Article 87 (Missing movement on 20021108)
         Article 112a (Wrongful use of marijuana – 2 specifications )
         Article 112a (Wrongful use of cocaine)
         Sentence : CONF 90 days (Pre-trial: 20030725-20030903, 38 days) (20030903-20030923, 20 days)

C C :     

Retention Warning Counseling :









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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective 9 September 2004 until
18 September 2005, 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 .




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

Applicant’s Issues

 1. Nondecisional issue: Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge based on a belief that he would warrant an automatic upgrade after two years.

2. Decisional issue: (Clemency) – None stated on the DD Form 293 , however, in reviewing the Applicant ’ s request for clemency to the Court-Martial Convening Authority , the Applicant contended that his misconduct was mitigated by his personal family issues and sought consideration in the form of clemency to reducing his Bad Conduct Discharge to an administrative separation with an Under Other Than Honorable Conditions characterization of service.

Decision

Date: 20110106          Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
Discussion

 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, 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 Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity. The Applicant enlisted in the Navy with a guarantee of promotion to E-3 having completed three years of Junior ROTC in high school. The Applicant’s record of service was marred with a trial by Special Court - Martial. The Applicant’s command preferred charges against him for violation of the UCMJ, Article 86 (Absence without leave - Absenting himself from his unit without authority - 6 separate specifications) and Article 112a (Wrongful use, possession, etc . of a controlled substance - 3 specifications: marijuana (1) and cocaine (2) ).

The Applicant entered into a pre-trial agreement with the Convening Authority; he accepted and pled guilty at trial by Special Court-Martial . On 03 September 2003 he was found guilty in trial by judge alone and was adjudged a sentence of a Bad Conduct Discharge, confinement for 90 days , and ordered a forfeiture of pay. As stipulated in the pre-trial agreement, all confinement in excess of 75 days was suspended for a period of 3 months , unless sooner vacated due to any misconduct by the Applicant. The trial by Special Court - Martial, without specific assignment of error or brief, was reviewed and was affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals on 19 November 2004 .

The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 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. The Applicant provided no post - service matters for consideration by the NDRB.

Issue 1: (Nondecisional) – Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge based on a belief that he would warrant an automatic upgrade after two years. T here is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.


Issue 2: (Decisional) ( ) . The Applicant contends that his misconduct was mitigated by his personal family issues and seeks consideration in the form of clemency by reducing his Bad Conduct Discharge to an administrative separation. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. In this specific case - drugs and extensive periods of unauthorized absence coupled with missing ship ’ s movement - the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient non-judicial punishment and administrative discharge process. Based on the facts stipulated in the verbatim record of trial, the Applicant’s misconduct (Unauthorized Absences) began before his child was diagnosed with a life - threatening medical condition and before his wife suffered any medical concerns beyond that of a normal pregnancy. The Applicant’s record contained no request for a temporary humanitarian transfer during the pregnancy complications and the Applicant provided no evidence that he attempted to seek assistance through his chain of command or the various external family support agencies provided for service members in need.

The NDRB determined that the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Furthermore, v iolation of Article 112a is an offense requiring mandatory processing, regardless of time in service or grade, which usually results in - at a minimum - administrative separation with an unfavorable characterization of discharge. Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. Additionally, violation of Article 86 (Unauthorized absence in excess of 30 days) is considered a serious offense, which also warrants a punitive discharge and confinement - if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. Given the multiple specifications of confirmed drug use and the types of drugs involved, coupled with the extensive periods of Unauthorized Absence, the NDRB determined that referral of charges to trial by court - martial was both proper and equitable and within the service norms for maintaining the good order and discipline of the armed forces.

The NDRB conducted a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice; s ervice r ecord e ntries; the verbatim Record of Trial by Special Court-Martial transcript ; the personal statement of the Applicant and his family members; and other supporting letters and medical documentation as submitted by the Applicant. Based on this review, the NDRB determined the sentence awarded the Applicant at his court-martial was both proper and appropriate for the offenses committed and that clemency was not warranted . Accordingly, r elief as requested is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, Verbatim Record of Trial b y S pecial C ourt M artial, and the discharge process, the Board found that clemency was not warranted. 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, Automatic Upgrades, and Post-Service Conduct .


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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