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NAVY | DRB | 2010_Navy | ND1000475
Original file (ND1000475.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20091124
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)        19930225 - 19930301     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930302     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950329      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 70
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA : 19930805-19930808 ( 3 days ) ; 19931109-19931114 (5 days)

NJP :

S CM :

- 19931203 :       Art icle (UA 19931109-19931114, 5 days)
         Article 112a (Wrongful use of methamphetamines on 19931109)
          Sentence : BW (Dates NFIR)

SPCM:

- 19940311 :       Art icle ( Insubordinate conduct toward Warrant Officer, Noncommissioned Officer or Petty Officer), 2 specifications
         Specification 1: Disrespectful in deportment toward FC1 on 19931213
         Specification 2: Disrespectful in language and deportment toward Tech Sergeant on 19931213
         Article 112a (Wrongfully used amphetamine/methamphetamine)
         Article 128 (Assault ed a BT2, by striking him in the face with his fist)
         Sentence : CONF 125 days (Pre-trial confinement 19931225-19940311 (76 days) , credited toward confinement)

C C :

Retention Warning Counseling :

- 19930303 :       For failure to disclose your pre-service criminal involvement: 3 /91 Credit card fraud, Tempe AZ.




Administrative Corrections to the Applicant’s DD 214

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

          “ MILPERSMAN 5815-010 ”
         “ COURT-MARTIAL ”
         “ 9 3AUG05-93AUG08; 93NOV09-93NOV14; 93DEC25-94MAR11; 94APR27-94JUN23 ”

The NDRB will recommend to the Commander, 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:           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. 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.       Nondecisional issues: The Applicant seeks clemency in the form of an upgrade to a General (Under Honorable Conditions) characterization of his service at discharge in order to be eligible to receive Department of Veterans Affairs (VA) medical benefits for himself and his family. The Applicant contends that he was guaranteed those rights for life - in writing - when he was separated.
2.       Decisional issues : (Clemency/Equity) The Applicant contends that his misconduct was mitigated due to being off his regular medications of Prozac and Lithium and that he was withdrawing from a 9-day binge of crystal-meth while confined in a threatening and restrictive environment. As such, the A pplicant seeks clemency in the form of an upgrade in his characterization of service at discharge to General (Under Honorable Conditions).

Decision

Date: 20 1 1 021 7            Location: Washington D.C .        R epresentation :

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 p articular case merited clemency; t he 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 at age 21 as an E-3, having completed 45 semester hours of college credits at an accredited educational institution. He enlisted on a four-year contract with a guarantee for the Navy’s Seafarer Seaman Apprenticeship Training Program . The Applicant’s enlistment process ing required waiver s to the enlistment standards for: alcohol abuse, driving while intoxicated, reckless driving, and 4 separate minor in possession of alcohol charges. The Applicant was advised of the Navy’s policies regarding Drug and Alcohol Abuse and acknowledged his understanding of the policies on 02 Mar 1993. Upon arrival of the Applicant at Recruit Training, it was determined that he had fraudulently enlisted in the Naval Service due to a failure to divulge criminal activity – credit card fraud in 1991. The Applicant was counseled formally regarding his fraudulent enlistment and the Commander, Naval Training Command authorized the Applicant’s retention in the Navy.

 The Applicant’s record of service included a trial by summary court - martial for violation of the Uniform Code of Military Justice (UCMJ) as follows: Article 86 (Unauthorized Absence – specifically in that the Applicant absented himself from his unit, without proper authority for 5 days) and Article 112a (Wrongful use , possession, etc of controlled substances – methamphetamines). The Applicant’s record of service also includes an additional period of unauthorized absence from 19930805 to 19930808 (3 days), which was not addressed via punitive or non-punitive punishment or formal counseling.

The Applicant’s official service record further contains a trial by Special Court - Martial. The Applicant’s command preferred charges against him for violation s of the UCMJ as follows:

•         Article 91 (2 specifications of insubordinate conduct toward a Noncommissioned Officer and a Petty Officer)
•         Article 112a (Wrongful use, possession, etc of a controlled substance - methamphetamines)
•         Article 128 (Assault - striking a BT2 in the face with a closed fist) .



The Applicant knowingly, intelligently , and voluntar ily waived his rights against self-incrimination to a tr i al of the facts by a court - martial and to confron t the witnesses against him. He voluntarily p led guilty at trial by Special Court-Martial on 11 March 1994. H e was found guilty in trial by judge alone and was adjudged a sentence of a Bad Conduct Discharge, confinement for 125 days, and ordered a forfeiture of pay. The Convening Authority reviewed the tr i al transcripts, the Applicant’s request for clemency, and the recommendations of the Staff Judge Advocate and found that clemency was not appropriate and that the punishment as specific, be executed. 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 22 December 1994. On 29 March 1995, the Navy and Marine Corps Appellate Leave Activity ordered the B ad C onduct discharge be executed ; the Applicant was discharged from the Naval Service on that date.

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 t o 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) – The Applicant seeks clemency in the form of an upgrade to a General (Under Honorable Conditions) characterization of his service at discharge in order to be eligible to receive VA medical benefits for himself and his family. The Applicant contends that he was guaranteed those rights for life - in writing - when he was separated.

This is an issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant has petitioned. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational or medical benefits. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of receiving medical benefits or enhancing employment or educational opportunities. Regulations strictly limit the NDRB’s review to a determination of the propriety and the equity of a discharge or for clemency based on inequity.

The Applicant contends that he was guaranteed access - in writing - to medical treatment when separated for himself and his family. He appended a copy of a NAVPERS 1070/613 service counseling entry that stated such to his Form DD-293 Application. The complete 613 counseling entry, as documented in the Applicant’s official service record, is entitled “Appellate Leave - Rights/Responsibilities Memorandum of Understanding.” This memorandum documents the Applicant’s basic entitlements warranted while on Appellate Leave, pending the final review and confirmation of his sentence of Bad Conduct Discharge. Until such time as a service member’s court - martial is reviewed and upheld by the court of appeals, the member remains in the service, at home in an Appellate Leave status, with basic benefits afforded to them until such time as their discharge. The Applicant signed the memorandum on 29 June 1994 as part of his appellate leave checkout process. The Applicant was advised that he was being afforded medical coverage for himself and his family while on Appellate leave, pending final review of his case by the U.S. Navy – Marine Corps Court of Criminal Appeals. However, the right of the Applicant to medical treatment under this memorandum of agreement officially ended when his court - martial was affirmed and the Bad Conduct discharge was ordered executed on 29 March 1995. Medical benefits for life was not promised.

I ssue 2: (Decisional) ( ) . The Applicant contends that his misconduct was mitigated due to being off his regular medications of Prozac and Lithium and that he was withdrawing from a 9-day binge of crystal-meth while confined in a threatening and restrictive environment. As such, the A pplicant seeks clemency in the form of an upgrade in his characterization of service at discharge to General (Under Honorable Conditions).

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 - abhorrent drugs coupled with insubordinate conduct and the physical assault of Brig officials in their formal capacity as such - the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient S ummary C ourt - M artial or non-judicial punishment and administrative discharge process. Based on the facts stipulated in the verbatim record of trial, the Applicant’s misconduct was willful and contemptuous and was without any provocation or justification . Alcohol consumption is not a rationale or acceptable excuse for inappropriate conduct, misconduct, or poor judgment. The Applicant’s abuse of alcohol required a waiver for enlistment, led to documented performance issues in service, and was ultimately the excuse for the Applicant’s use of methamphetamines. He was afforded an opportunity to correct his misdeeds as a youth by being granted a waiver for his alcohol abuse and civilian convictions. Further, he acknowledged , in writing, the Navy’s policy on alcohol abuse and drugs both prior to entry and upon arrival at Recruit Training. He willfully and knowingly violated these polices, resulting in summary and special court - martial


convictions. The Applicant’s denial of his request for voluntary inpatient treatment for alcohol abuse by his Commanding Officer is not justifiable mi tigation for his misconduct.

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 punitive discharge was awarded. Furthermore, violation of Article 112a is an offense requiring mandatory processing, regardless of time in service or grade . Given the extensive use of methamphetamines , coupled with the special circumstances related to the insubordination an d physical assault, the NDRB determined that referral of charges to trial by court - martial was both 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 summary of service; service record entries; the verbatim Record of Trial by Special Court-Martial transcript; the personal statement of the Applicant ; and his pre-enlistment character references for selection to the Naval Academy . 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, relief as requested is denied.

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

Since fifteen years from the date of his discharge has elapsed, the Applicant is not eligible for a personal appearance hearing. The Applicant should petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149 , for additional reviews .


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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