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NAVY | DRB | 2011_Navy | ND1100008
Original file (ND1100008.rtf) Auto-classification: Denied
ex-MMFR, USN
Current Discharge and Applicant’s Request
Application Received: 20100930
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)        20010830 - 20011014     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011015     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050826      Highest Rank/Rate: MMFA
Length of Service : Y ear s M onth s 16 D a ys
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 2.83

Awards and Decorations ( per DD 214):      NDSM

Periods of UA :

NJP : NONE        S CM : NONE                 CC: NONE         Retention Warning Counseling : NONE

SPCM: 1

- 20040426:       Art icle 108 (Military property of the United States : Loss, damage, destruction, or wrongful disposition - did willfully damage an EAB locker of a value of $250.00)
         Article 115 (Malingering, for the purpose of avoiding his service as an enlisted person - did intentionally injure himself by shooting himself in the left hand while aboard a US submarine )
         Article 134 (Wrongfully and willfully discharge a firearm in the torpedo room on board a USS submarine under such circumstances as to endanger human life - 20030615 )
          Sentence Adjudged : BCD, CONF 6 months (20040426 - 20040922, 150 days)
         Convening Authority Action: The sentence is approved and, except for the part of the sentence extending to the B ad C onduct D ischarge, will be executed.

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 :        

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

Applicant’s Issues

 1.        Nondecisional issues: The Applicant seeks clemency through a request for a change in his characterization of service at discharge to General (Under Honorable Conditions) to facilitate employment opportunities with local law enforcement.

2.       Decisional issues: The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration , however, by submission of his DD Form 293, the Applicant is seeking a review for clemency in upgrading his discharge characterization as requested.

Decision

Date: 20 1 20112            Location: Washington D.C .        R epresentation : NONE

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. Matters of propriety are addressed through the Courts of Appeal as a function of t he Applicant’s legal rights.

The Applicant entered military service at age 24 on a four year enlistment with a 12-month extension as a volunteer for submarine duty and guaranteed training as a Machinist Mate ( S ubmarine). The Applicant’s enlistment record reflects his entry into the military service with out waiver to enlistment and induction standards . The Applicant satisfactorily completed one year and eight months of service before injuring himself and then being referred to trial by S pecial C ourt -M artial; the remainder of his enlistment period was served while either pending trial by court-martial, in confinement, or on appellate leave, pending review of his punitive discharge. The Applicant’s record of service document s a S pecial C ourt- M artial for violation of the UCMJ: Article 108 (D estruction of government property) , Article 115 (Malingering) , and Article 134 ( W rongfully and willfully discharging a firearm aboard a U.S. submarine under such circumstances as to endanger human life). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. Given the facts of the case, the j udge found the Applicant guilty of the charge as specified and adjudged confinement for a period of 6 months and to be discharged from the Naval Service with a Bad Conduct Discharge . The Applicant served a total of 150 days confinement and was released to his command for transfer to an appellate leave status pending appellate review of the punitive discharge. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 16 June 2005 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant wa s discharged on 26 August 2005.

Nondecisional Issue : The Applicant seeks clemency through a request for a change in his characterization of service at discharge to General (Under Honorable Conditions) to facilitate employment opportunities with a local law enforcement agency. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities, reenlistment, or access to v eterans benefits programs. Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
Decisi onal Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant is seeking clemency by requesting an upgrade to a General (Under Honorable Conditions) characterization of service . Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 115 and 134, as specified, warranted up to 5 years confinement and punitive discharge, if adjudged at a trial by G enera l C ourt -M artial. In the Applicant’s case, his command opted to dispose of the charges via the more restrictive trial by S pecial C ourt- M artial. The Applicant entered into a p re- t rial a greement in which he submitted a stipulation of facts related to the charges and agreed to plead guilty before a trial by judge alone. In return, the command agreed to limit the period of confinement and deferment of any adjudged forfeitures or fines and automatic forfeitures. As such, the Applicant pled guilty before a judge alone and testified to t he elements of the charges.

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. The general contempt for good order and discipline was not minor misconduct and supported the findings of the court - martial in awarding a Bad Conduct Discharge. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded punitive discharge was appropriate. Given the short period of the Applicant’s service, coupled with the deliberate nature of the misconduct to avoid service , the NDRB agreed unanimously that the punishment, as awarded, was warranted, was equitable, and remains, a proper reflection of the Applicant’s service and reason for discharge; as such, relief in the form of clemency is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted. 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 .

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 .

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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