Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100220

Original file (ND1100220.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20101103

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:         USA (DEP)        19970310 - 19970610 COG
         US N R (DEP)        20000911 - 20001002     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001003     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040302      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 15 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Period s of U nauthorized Absence (U A ) : 20010917 - 20010919 ( 2 days ); 20011001 - 20011008 ( 7 days )

NJP :     S CM :          CC:      Retention Warning Counseling :

SPCM:

- 20020718 :       Art icle ( Absence without leave; A bsen ted himself from unit, without authority, and did remain so absent from 200110 2 6 to 20020609 ( 229 days ) - absence terminated by apprehension by civilian law enforcement authorities and return to military custody)
         Art icle ( Absence without leave; Absented himself from his unit, without authority , and remained so absent as specified) ,
         Specification 1: Unauthorized absence from 20010529 to 20010625 ( 27 days )
         Specification 2: Unauthorized absence from 20010706 to 20010708 ( 2 days )
         Article 87 ( Missing Movement: Missed movement of assigned ship through design on 20010531)
         Article 112a (Wrongful use , possession, etc., of a controlled substance; specifically, wrongful use of marijuana on or about 20020613)
         Sentence Adjudged : , , CONF 60 days (Pre-trial conf : 20020609-2002071 7 ( 39 days) ; confinement : 20020718 - 20020727 (10 days))
         Convening Authority Action : The sentence is approved and, except for the BCD, is ordered executed. The Pre-Trial Agreement had no limiting effect on the sentence as adjudged.

Administrative Corrections to the Applicant’s DD 214

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

         “ 01MAY29-01JUN25, 01JUL06-01JUL08, 01SEP17-01SEP19, 01OCT01-01OCT08, 01OCT26-02JUN09, 02JUN09-02JUL 27 ”

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), re-issued October 2002, effective 22 August 2002 until 8 September 2004, 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 503, Equity .

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

Applicant’s Issues

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

Decisional is sues: The Applicant seeks clemency, contend ing that his characterization of service was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.

Decision

Date : 20 1 2 0 405 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. Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.

The Applicant’s service record indicates he entered military service at age 24 on a four-year enlistment contract . The Applicant’s enlistment record reflects his entry into military service with w aivers to enlistment and induction standards for three chart B offenses and a parole violation regarding a failure to submit a report following a traffic accident and a prior U.S. Army D elayed E ntry P rogram discharge . The highest rank achieved by the Applicant during his enlistment was E- 3/Airman . The A pplicant’s period of service under review documents that his service included o ne punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 18 July 200 2 . The Applicant was subject to trial by S pecial C ourt -M artial for multiple violation s of Article 86 (Unauthorized Absence , 229 days - terminated by apprehension, 27 days, and 2 days ) and Article 112(a) (Wrongful use, possession, etc, of a controlled substance - marijuana) , and Article 87 ( M issing movement) . 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 , reduction in rank to E-1, 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 , provide a stipulation of facts related to the charges, 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 out assignment of error; 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 02 March 2004 .

Non-decisional Issue - The Applicant seeks an upgrade to his discharge characterization of service (clemency) in order to facilitate employment opportunities . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or providing access to Department of Veterans Affairs (VA) benefit programs . Regulations limit the NDRB’s review solely to a determination of the equity of the discharge when determining clemency for a sentence adjudged by court - martial . As such, this issue does not serve to provide a foundation upon which the NDRB may grant relief.

Decisional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant seeks clemency, contend ing that his characterization of service was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial are presumed, by the NDRB, to be established facts. 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 10 months before being sentenced to a Bad Conduct Discharge by a Special Court - Martial. In this short period of time, the Applicant amassed 5 periods of unauthorized absence equating to 257 days of lost time. On 26 October 2001, the Applicant absented himself from his unit, without authority, and remained so absent until his absence was terminated through apprehension by civilian law enforcement authorities on 09 June 2002 (229 days). During this period of absence, the Applicant was declared a deserter, dropped from the unit’s rol l s, and a DD Form 553 ( DESERTER/ABSENTEE WANTED BY THE ARMED FORCES) was issued seeking the Applicant’s apprehension and return to military custody. Upon return to military custody, the Applicant tested positive on a command urinalysis for the illegal use of a controlled substance - marijuana. The Applicant ’ s misconduct documents a pattern of deliberate and willful misconduct related to unauthorized absence and illegal drug use 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 counseling, coupled with the need to ensure good order and discipline of the service, the Command referred the final unauthorized absence charge of 22 9 days and the illegal drug use to trial by Special Court - Martial. The stated misconduct resulted in the awarding of a punitive 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. Violation of Article 86 (UA in excess of 30 days) and Article 112a ( W rongful use of a controlled substance) are offense s requiring mandatory processing for administrative separation regardless of grade or time in service. Th ese charges usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or Ge neral C ourt- M artial. The command did not pursue the more lenient administrative discharge but opted instead for a punitive discharge. The NDRB determined an upgrade would be inappropriate and that clemency was not warranted.

The pattern of documented unauthorized absences , illegal drug use, 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2011_Navy | ND1100220

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