Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001655

Original file (ND1001655.rtf) Auto-classification: Denied

ex-MSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20100623

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)        19950526 - 19951126     Active:

Period of Service Under Review:
Date of Current Enlistment: 19951127     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991222      Highest Rank/Rate: MSSA
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.00

Awards and Decorations ( per DD 214):      , (2) , , , LoC

Periods of UA : 97 JUN 13 - 97 JUN 15 (03 days - surrendered) ; 97 JUN 20 - 97 JUN 29 (10 days - surrendered) ; 97 JUL 18 - 97 JUL 24 (07 days - surrendered ); 97 AUG 24 - 97 AUG 25 (02 days - surrendered ); 97 AUG 27 - 97 SEP 01 (05 days - surrendered ); 97 SEP 02 - 97 SEP 16 (15 days - apprehended by military authority ); 97 OCT 03 - 97 OCT 05 (03 days - surrendered ); 97 OCT 07 - 97 OCT 07 (01 day - surrendered ); 97 OCT 11 - 97 OCT 13 (03 days - apprehended by military authority ); 97 OCT 15 - 97 OCT 16 (02 days - surrendered ); 97 NOV 07 - 98 APR 16 ( 161 days - apprehended by civilian authorities, arrested, and co nfined county jail)

Periods of CONFINEMENT : 98 APR 17 - 98 NOV 06 ( 204 days - In hands civilian authorities) ; 98 NOV 07 - 98 Nov 15 (9 days - In hands civilian authorities, pending transfer to military control) ; 98 NOV 16 - 98 DEC 21 ( 36 days military custody - p re-trial confinement )

NJP :     S CM :    Retention Warning Counseling :

SPCM:
- 19981222 :       Art icle ( Absent without leave ) , 2 specifications
         Specification 1: Absented himself from his appointed place of duty, without authority, and did remain so absent from 19970902-19970917 for a period of 16 days
         Specification 2: Absented himself from his appointed place of duty, without authority, and did remain so absent from 19971107-199811 06 for a period of 3 64 days
         Sentence : BCD, CONF 90 days
         CA: Sentence is approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 75 days is suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remi tted without further action.

C C :
- 19981106 :       Offense: Possession of cocaine ; S entence : 6 months in jail (time served) . Remanded to State Correctional Institution pending return to military control.

Administrative Corrections to the Applicant’s DD 214

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

“ APPELLATE LEAVE 98DEC24-99DEC22 (359) ”
“ C OURT-MARTIAL ”
         “ 97JUN13-97JUN15 (03);97JUN20-97JUN29 (10); 97JUL18-97JUL24 (07); 97AUG24-97AUG25 (02); 97AUG27-97SEP01 (05); 97SEP02-97SEP16 (15); 97OCT03-97OCT05 (03); 97OCT07-97OCT07 (01); 97OCT11-97OCT13 (03); 97OCT15-97OCT16 (02); 97NOV07-98NOV06 (364); 98NOV06-98DEC21 (46)”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 to
21 August 2002, 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 via an upgrade in the characterization of service received at discharge in order to facilitate access to Department of Veterans Affairs (VA) benefits and enhanced employment opportunities .

2.       Decisional issues: The Applicant did not identify any issues related to the equity of his discharge action for the NDRB’s consideration ; however, submission of his applicat ion requesting a review is a request for clemency in itself .

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 as stated in a court-martial 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 case merited clemency.

The Applicant’s service record indicates he entered military service at age 1 8 on a 4 -year enlistment contract with no extensions for guaranteed training as a Mess Management Specialist . The Applicant’s enlistment record reflects his entry into military service with out any wa i ver to enlistment and induction standards . The highest rank achieved by the Applicant during his enlistment was E- 2 / MSSA . The Applicant’s period of service under review documents a punitive conviction with punishment as adjudged by a S pecial C ourt -M artial on 22 December 1998 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 86 ( Absent without leave; 2 specifications ). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement, the Applicant agreed to request trial by military judge alone and agreed to plead guilty to the agreed upon charges while also including a signed, written stipulation to the facts as related to the charg es . In consideration, the convening authority agreed to withdraw nine other specifications of unauthorized absence and agreed to a sentence limitation regarding the length of confinement. Given the facts of the case and the Applicant’s testimony of record , the trial judge awarded the Applicant a Bad Conduct Discharge, a reduction in grade to E-1, and confinement for a period of 9 0 days. 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 05 August 1999 . Subsequently, the Applicant submitted a petition for a grant of review by the United States Court of Appeals for the Armed Forces; the petition for review was denied. Subsequently, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 22 December 1999 . The Applicant’s final discharge was effected on that date.

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 from Bad Conduct to General (Under Honorable Conditions) in order to facilitate access to VA and government be nefits and to facilitate better opportunities for employment. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans and government benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Board Issue: (Clemency) - RELIEF NOT WARRANTED. The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review; however, the Applicant did not identify any specific issues of inequity for the NDRB’s consideration. The NDRB conducted a thorough review of the Applicant’s discharge 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 1 year and 6 months before the Applicant’s misconduct of record began. The Applicant ’ s documented misconduct includes a n extensive pattern of misconduct related to unauthorized absences , culminating in an absence in excess of 360 days , which included a felony civilian conviction and six months of jail time for possession of cocaine . D ue to the Applicant ’ s refusal to conform to the expected conduct of a United States Sailor and the detrimental effect to the good order and discipline of the command, the Command referred the most egregious violations of the UCMJ to trial by c ourt -m artial. The charges were adjudicated at trial by Special Court - Martial in accordance with a sig n ed Pre-Tri a l Agreement. The stated misconduct resulted in the S pecial C ourt - M artial awarding a punitive Bad Conduct Discharge , reduction to E-1, and confinement for 90 days.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably. While some members may be less mature than others may, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially repetitive misconduct. Moreover, despite a servicemember’s prior record of service , certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Chronic and deliberate unauthorized absence, coupled with t he wrongful use o r possession of a controlled substance (cocaine) , 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 | ND1001655

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