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NAVY | DRB | 2010_Navy | ND1001861
Original file (ND1001861.rtf) Auto-classification: Denied

ex-ABFAR, USN
Current Discharge and Applicant’s Request
Application Received: 20100722
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)        20030828 - 20030318     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030319     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070815      Highest Rank/Rate: ABFAA
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 47
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

NJP :

- 20031125 :      Article (Provoking speech or gestures )
         Article (Assault consummated by a battery, by unlawfully striking a sailor on the head with his hand)
         Awarded: Suspended:

S CM :

- 20041105 :       Art icle ( Absence without leave - absented himself from his unit, without authority, from 20040601 - 20040803, 64 days)
         Article (Missing ship’s movement on or about 20040603)
         Sentence :

SPCM:

- 20050720 :       Art icle ( Absence without leave - absented himself from his unit, without authority, from 20041213 - 20050601, 171 days)
         Sentence : , 60 days (20050601 - 20050719, 49 days pre-trial confinement) ( 20050720 - 20050722, 2 days confinement )

C C :

Retention Warning Counseling :

- 20030527 :       For fraudulent enlistment into N aval S ervice as evidenced by your failure to disclose your pre-service civil conviction for robbery




Administrative Corrections to the Applicant’s DD 214

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

         Block 21, Signature of Member Being Separated, should read “ Member unavailable for signature ”
         “ 04JUN01 TO 04AUG03, 04DEC13 TO 05MAY31, 05JUN01 TO 05JUL22 ”

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:   
                                             Verbatim Record of Trial by Special CM
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 12, effective 19 September 2005 until 18 December 2007, 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 and change in his reenlistment code in order to facilitate reenlistment in the armed services.

2.       Decisional issues: The Applicant did not identify any issues related to the equity of his discharge; however, by submission of an application for review, he is seeking clemency as it relates to the equity of his discharge.

Decision

Date: 20 1 1 1104            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 specification 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 par ticular case merited clemency.

The Applicant’s service record indicates he entered military service at age 21 on a four-year enlistment contract . The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment and induction standards. The Applicant’s period of service under review reflect s one NAVPERS 1070/613 retention-counseling warning for fraudulent enlistment into the N aval S ervice due to failure to disclose a pre-service civil conviction for robbery . Additionally, his record of service contained one non-judicial punishment and one Summary C ourt - Martial for violation s of the Uniform Code of Military Justice (UCMJ) : Article 86 (Unauthorized a bsence , 64 days ) , Article 87 (Missing ship ’ s movement) , Article 117 ( P rovoking speech) , and Article 128 (Assault consummated by battery) . Moreover , the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 20 July 2005 . The Applicant was subject to trial for violation of Article 86 (Unauthorized a bsence , 1 71 days). A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 60 days. The Applicant was tried in accordance with a signed pre-tri a l agreement in which he agreed to ple a d guilty and accept trial by judge alone in exchange for leniency on matters of sentencing . The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals with one assignment of error (post - trial delay) ; it was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was effective on 15 August 2007 .

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) and a change to a better reenlistment code in order to facilitate reenlistment . The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces and is not authorized to change a reenlistment code. Reenlistment policy is established by the service headquarters. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “ RE ” code is, in itself, a bar to reenlistment. The NDRB is not authorized to change the reentry code as requested; only the Board for Correction of Naval Records can make changes to reenlistment codes .



Decisional Issue (Clemency/Equity) - RELIEF NOT WARRANTED. The Applicant did not identify any issues related to the equity of his discharge . The Applicant’s service record documents a period of service of approximately 2 years and 4 months . In this short period of time, he was determined to have fraudulently enlisted . He was counseled and retained , but subsequent misconduct resulted in being subject to one N JP for assault and provoking speech , one Summary Court - Martial for u nauthorized a bsence (64 days) and m issing s hip ’ s m ovement , and a trial by Special Court - Martial for an u nauthorized a bsence of 1 71 days. The Applicant ’ s misconduct documents a pattern of deliberate and willful misconduct related to unauthorized absence and a general failure to conform to military rules and regulations. Due to the Applicant ’ s refusal to conform to the expected conduct of a United States Sailor after administrative punishment and retention counseling, coupled with the need to ensure good order and discipline of the service, the Command referred the final unauthorized absence charge to trial by Special Court - Martial. The stated misconduct resulted in the awarding of a Bad Conduct Discharge and confinement for 60 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 s honorably. While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate and 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. The Applicant contends he was worried when his pregnant fianc é e fell down a flight of stairs and was hospitalized, so he left without authorization to be by her side. This may have been mitigation for several days of unauthorized absence , but the NDRB rejected this argument due to the length of absence (171 days) . Additionally, this was on top of r epetitive misconduct. The pattern of documented unauthorized absences and general contempt for good order and discipline is not minor misconduct and supports the findings of the court - martial in awarding a Bad Conduct Discharge. The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, 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 warranted and was equitable; 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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