Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001605

Original file (ND1001605.rtf) Auto-classification: Denied

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20100618

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)        20000915 - 20001108     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001109     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050506      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.16
Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : Pre-Trial C onfinement: 20030415 - 20030618 (65 days) ; Confinement: 20030619 - 20030703 (14 days ) .

NJP :
- 20010524 :       Article ( Failure to obey order or regulation - u nderage consumption of alcohol )
         Awarded : Susp ended:

- 20030321 :       Article ( False official statement)
         Article ( General Article - 2 specifications )
         Specification 1 - O bstructing justice
         Specification 2 - Bribery
         Awarded : Susp ended:

S CM :    CC:

SPCM:
- 20030619 :       Art icle 95 (Flight from apprehension)
         Article 112a (Wrongful use, possession, etc ., of controlled substance), 3 specifications
         Sentence : CONF 10 months BCD
         CA: All of the sentence is approved and will be executed, but the execution of that part of the sentence extending to confinement in excess of 90 days is suspended for 12 months from the date of the Convening Authority’s action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action; and the portion of the sentence extending to a bad conduct discharge may not be executed until final appellate review.

Retention Warning Counseling :
- 20010524 :       For underage drinking
- 20021003 :       For you were awarded 24 hours of community service for driving a motorized vehicle without insurance, driving with a learners permit without proper supervision, unauthorized use and display of registered plate, driving a vehicle with a suspended registration, driving an unregistered vehicle, and displaying plates registered to another vehicle.

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 issues : The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate government employment.

2.       Decisional issues: The A pplicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions), as he remained trouble free for seven years.

Decision

Date: 20 1 1 1005            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 NDRB 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 proceeding are presumed, by the NDRB, to be established facts. As such, the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular c ase merit clemency.

The Applicant’s service record documents entr y into military service at age 1 7 with parental consent as a Corpsman on a 4 -year enlistment contract with a 12 - month extension . The Applicant’s enlistment record reflects entry into military service with out wa i ver to enlistment or induction standards . The Applicant acknowledged his full understanding of t he Navy Policy on Illegal D rug U se as a function of his enlistment contract . T he Applicant’s period of service under review reflect s one NAVPERS 1070/613 retention-counseling warning and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : Article 92 (Failure to obey orders or regulations) , Article 107 (False official statement), and Article 134 (2 specifications – bribery and obstructing justice) . Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 19 June 2003 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 95 ( Resisting a pprehension – flight from apprehension) and Article 112(a) ( W rongful use, possession, etc of illegal drugs ( marijuana) , 3 separate specifications of wrongful possession and use). A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement, the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charges and submitted a signed, written stipulation of the facts related to the charged misconduct. In consideration, the convening authority agreed to suspend any confinement adjudged in excess of 90 days. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 10 months . The case was submitted for review without assignments of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 26 May 2004 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 21 Oct 2004 . For unknown reasons, the Applicant remained in an appellate leave status until the Appellate Leave Activity discharged him on 6 May 2005.

Besides his DD Form 293 , the Applicant provided no other documentation in support of his request for consideration by the NDRB.

Nondecisional issue – The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate government employment. There is no requirement, or law, that grants re-characterization solely on the issue of improving employment opportunities or facilitating governmental employment; as such, the NDRB has no authority to upgrade a discharge for th is purpose and cannot form a basis of relief.

Decisional issue : (Clemency) - RELIEF NOT WARRANTED. The A pplicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions), as he remained trouble free for seven years. The NDRB conducted a thorough review of the Applicant’s Bad Conduct D ischarge under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s service record documents a period of service of approximately 2 years and 7 months in which time he was subject to two n onjudicial p unishments and a trial by Special Court - Martial. The Applicant ’ s misconduct includes a punitive conviction for drug use - while on duty - and further documented approximately 20 other, unspecified uses of drugs over a 6-month period. Additionally, when caught by a Senior Petty Officer while using and possessing illegal drugs during duty work hours, the Applicant fled from the apprehension. Given the Applicant ’ s refusal to conform to the expected conduct of a United States Sailor , t he detrimental effect to the good order and discipline , the endangerment to the safety of his fellow S ailors and medical patients of the command, his Commander referred the charges to trial by Special Court - Martial. The stated misconduct resulted in the Special Court - Martial awarding a punitive Bad Conduct Discharge, reduction to E-1, and confinement for 10 months .

The repetitive and wrongful use of a controlled substance – while on duty , coupled with fleeing apprehension , is not minor misconduct. The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the short period of the Applicant’s service, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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 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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NAVY | DRB | 2010_Navy | ND1001605

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