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NAVY | DRB | 2012_Navy | ND1200426
Original file (ND1200426.rtf) Auto-classification: Denied

ex-ASAR, USN
Current Discharge and Applicant’s Request
Application Received: 20111213
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      
        
Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19871207 - 19880814     Active:   19880815 - 19920812 HON

Period of Service Under Review:
Date of Current Enlistment: 19920813     Age at Enlistment:
Period of E nlistment : Years 17MONTHS Extension
Date of Discharge: 19980310      Highest Rank/Rate: AS2
Length of Service: Y ear( s ) M onth( s ) 26 D a ys
Education Level:        AFQT: 69
Evaluation M arks:         Performance: 4.0 ( 7 )      Behavior: 4 . 0 ( 8 )        OTA: 3.9 8

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

Periods of UA /C ONF :

NJP :     S CM :             CC:      Retention Warning Counseling :

SPCM:

- 19961002 :       Art icle (Assault)
         Sentence : 6 mo BCD Suspended: CONF
        
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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until 14 December 1998, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL

B. 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.        The Applicant contends his discharge was an isolated incident in 98 months of service with no other adverse action. He further contends th e maximum penalty punishment received for a one-time offense did not meet conforming standards under proportionality principles.
2.       The Applicant contends his dedicated service and character and lack of prior adverse actions were not taken into consideration at sentencing.
3 .       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 1212             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental 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. The Applicant’s record of service included for of the UCMJ: Article 128 (A ssault , threw his wife on the floor, slammed her head into the floor, struck her in the face with a closed fist, and attempted to suffocate her ). Based on the Applicant’s conviction and sentence at a special court-martial, he was discharged with a Bad Conduc t Discharge .

: (Decisional) ( ) . The Applicant contends his discharge was an isolated incident in 98 months of service with no other adverse action. He further contends th e maximum penalty punishment received for a one-time offense did not meet conforming standards under proportionality principles. The Applicant received an Honorable discharge for his first enlistment from August 1988 to August 1992. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his second enlistment, the Applicant was found guilty at a special court-martial for violating UCMJ Article 128 (Assault). His punishment was completely in line with what was authorized by the Manual for Courts-Martial, and this was confirmed in the appeals process after his court-martial. After reading the transcript of the court-martial proceedings, the NDRB determined clemency was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his dedicated service and character and lack of prior adverse actions were not taken into consideration at sentencing. A review of the special court-martial proceedings reveals that confinement was suspended after the Applicant was found guilty of v iolat ing Article 128 whe re he brutally assaulted his wife, in front of their two small children, by throwing her on the floor, slamming her head into the floor, striking her in the face with a closed fist, and attempting to suffocate her . The NDRB found the Applicant’s sentence and punitive discharge w ere equitable and consistent with what others received for similar service and misconduct. Relief denied.

: (Decisional) ( ) . The Applicant s tated he has continued on with his life to the best of his ability and inciden t - free after being discharged . The NDRB is authorized to consider post-service factors in determining if clemency is warranted. 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. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee the granting of clemency. The NDRB determined clemency was not warranted for this issue. Relief denied.

S ummary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall 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 for additional information.



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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