Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100708

Original file (ND1100708.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20110119

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)        19990812 - 19991101     Active:

Period of Service Under Review:
Date of Current Enlistment: 19991102     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030113      Highest Rank/Rate: SR
Length of Service: Y ear s M onth s 12 D a ys
Education Level:        AFQT: 50
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214): NONE

NJP : 1

- 20000126 :      Article 86 (Absence without leave, 2 specifications )
         Specification 1: U nauthorized absence; absented himself from his unit, without authority, from 19991219 to 19991220 ( 2 days )
         Specification 2: Unauthorized absence; absented himself from his unit, without authority, from 19991223 to 20000118 ( 26 days )
         Awarded: FOP RESTR EPD Suspended: RESTR EPD

SPCM: 2

- 20000807 :       Article 86 (Absence without leave, 2 specifications )
         Specification 1: Unauthorized Absence; absented himself from his unit, without authority, on or about 14 March 2000 and remained absent until 16 May 2000 (62 days) - absence terminated by surrender to military authority
         Specification 2: Unauthorized absence; failure to go to appointed place of duty at the time prescribed on 18 May 2000.
         Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
         Sentence Adjudged : To be confined for 75 days (20010523 - 20010815, 83 days) and FOP x 2 months
         Convening Authority Action: The sentence is approved and will be duly executed. In accordance with the pre-trial agreement, all confinement in excess of 60 days is suspended for a period of 6 months.

- 20010816 :       Art icle 86 ( Unauthorized Absence; absented himself from his unit, without authority, on 20000710 and remained so absent until 20010523 (313 days) - absence was terminated through apprehension by local civilian law enforcement authorities and return to military custody
         Sentence Adjudged : BCD, C onfinement for 6 months ( pre-trial 20010523 - 20010815 [ 83 days ] ) , FOP
         Convening Authority Action: The sentence is approved and, except for the Bad Conduct Discharge, will be duly executed. In accordance with the terms of the pre-trial agreement, all confinement past 16 August is suspended for a period of 6 months.

Retention Warning Counseling : 1

- 20000126 :       For misconduct related to two periods of unauthorized absence

SCM: NONE

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
                                             Verbatim Record of Trial - SPCL 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), 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

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

2. The Applicant seeks clemency, contending that his post-service conduct and accomplishments are worthy of consideration

Decision

Date: 20 1 2 0426 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 the Applicant’s legal rights.

The Applicant entered military service at age 1 8 on a four year enlistment without extension. The Applicant’s record of service documents one nonjudicial punishment (NJP) (Jan 2000) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (for 2 specifications of unauthorized absence). Because of the aforementioned misconduct, the Applicant received a formal P age 13 retention - counseling warning (26 Jan 00) advising him that any further misconduct could result in punitive action or administrative separation . On 18 May 2000, the Applicant again absented himself from his unit, without authority, for a period of 62 days. Upon return, he failed to go to his appointed place of duty and was insubordinate in conduct and language to a Petty Officer; for these charges, he was referred to trial by Special Court - Martial. Throughout the trial by S pecial C ourt -M artial process, the Applicant was represented by a qualified military defense coun se l. In accordance with a signed Pre-Trial Agreement (PTA), the Applicant provide d the court a stipulation of facts to his misconduct and agreed to plead guilty and elect trial by military judge alone. The Military Judge determined that retention and rehabilitation was warranted and did not award a Bad Conduct Discharge; the sentence adjudged included only a period of confinement for 75 days and forfeiture of pay. Upon release from confinement and return to his assigned unit, the Command recommended administrative separation; in accordance with the PTA, the Applicant waived his right to an administrative review board and acknowledged that he could receive a discharge under ot her than honorable conditions. While awaiting completion of the administrative discharge process, the Applicant again absented himself, without authority, and remained absent (313 days) until he was apprehended by civilian law enforcement authorities for desertion from military service. Upon the Applicant’s return to military custody, he was ordered to pre-trial confinement, pending another trial by S pecial C ourt -M artial. The Applicant was charged with violating Article 86 (Absence without leave - Absented himself from his unit, without proper authority, on 20000710 and remained so absent until 20010523 wherein his absence was terminated through apprehension by civilian law enforcement personnel; total days absent - 313 days). A qualified legal defense counsel represented the Applicant throughout t his trial by Special Court - Martial. The Applicant had a PTA in place in which he agreed to stipulate to the facts of the misconduct and plead guilty in trial by military judge alone; in exchange, the command afforded leniency in confinement to time served. Given the facts of the case during the sec ond S pecial C ourt -M artial , the Judge 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 specifically waived his right to Appellate review with the U.S. Navy - Marine Corps Court of Criminal Appeals . As such, after local Staff Judge Advocate review, the Convening Authority took final action and ordered the a djudged sentence executed. The Applicant’s final discharge was effected on 13 January 2003.

Issue 1 ( Nondecisional ) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge 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 , access to Department of Veterans Affairs (VA) benefit programs, or reenlistment in the armed services. 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.

Issue 2 ( Decisional Issue ) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant seeks an upgrade, contending that his post-service conduct and accomplishments are worthy of consideration . The Applicant’s service record documents a period of service of approximately 50 days of active service prior to beginning his period of unauthorized absences (2 days, 26 days). During this time, the Applicant was subject to a nonjudicial punishment and received a retention counseling warning for his initial misconduct. The Applicant then absented himself, without authority , from his unit for 62 days, returning to military authority by surrendering himself. The Applicant was referred to trial by S pecial C ourt- M artial, which adjudged 75 days of confinement and a forfeiture of pay ; upon completion of his adjudged confinement, the Applicant returned to duty with his unit , awaiting administrative separation. Three days later, the Applicant again absented himself from his unit for a period of 313 days ; this absence was terminated when he was apprehended by civilian law enforcement authorities and returned to military authority. The command referred the Applicant to a second trial by S pecial C ourt -M artial , this time receiving a punitive Bad Conduct Discharge as part of the adjudged sentence.

The Applicant contends that his post-service achievements , as evidenced by his college attendance and Dean’s list status, coupled with his volunteer service with the local hospital, warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. 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. T he pattern of documented unauthorized absences , failure to take corrective actions, and a 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. Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, ended only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted, was equitable, was, and remains, a proper reflection of the Applicant’s service and reason for discharge; as such, relief in the form of clemen cy 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 .

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 | ND1100708

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