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Ts ~ Docket No. ND13-01190

“”, ex-ITSR, USN
CURRENT DISCHARGE AND APPLICANT’S REQUEST
Application Received: 20130508
Characterization of Service Received: (per DD 214) BAD CONDUCT
Narrative Reason for Discharge: (per DD 214) COURT-MARTIAL
Authority for Discharge: (per DD 214) MILPERSMAN 5815-010 [COURT-MARTIAL}

Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDIT IONS)
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USNR (DEP) 20040309 - 20040414 COG Active: NONE

Period of Service Under Review:

Date of Current Enlistment: 20040415 _ Age at Enlistment: 27

Period of Enlistment: 4 Years 12 MONTHS Extension

Date of Discharge: 20071002 Highest Rank/Rate: IT3
Length of Service: 03 Year(s) 05 Month(s) 18 Day(s)

Education Level: 12 AFOQT: 70

Evaluation Marks: Performance: 2.0 qd) Behavior: 2.0 (1) OTA: 1.67

Awards and Decorations (per DD 214); MUC NDSM GWOTSM

Periods of UA: 20060131 - 2006021 5, 16 days; 20060529 - 20060531, 3 days; 20060601 - 20061220, 203 days
CONF: 20061220 - 20070125, 36 days |

NJP: NONE SCM: NONE CC: NONE Retention Warning Counseling: NONE

SPCM: 1

- 20070118: Article 86 (Absence without leave, 3 specifications)
Specification 1: On or about, 20060131 - 20060215, 16 days.
Specification 2: On or about, 20060529 - 20060531, 3 days
Specification 3:.On or about, 20060601 - 20061220, 203 days
Article 87 (Missing movement, 2 specifications)
Specification I: On or about, 20060201 miss the movement of USS JOHN C.. STENNIS
Specification 2: On or about, 20060530 miss the movement of USS JOHN C. STENNIS
Article 92 (Failure to obey order or regulation, on or about, November or December 2005, failed to sit
down in the LPO’s Office, to stop walking, and to stand at attention)
Article 1 12a (Wrongful use, possession, etc., of a controlled substance, 2 specifications)
Specification 1: On or about, 2006051 1, wrongfully use marijuana
Specification 2: On or about, 20061222, wrongfully use marijuana
Sentence: BCD RIR E-1 CONF 3 MONTHS Suspended: CONF 45 DAYS

Key: NFIR - Not found in record RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
| ried a Docket No. ND13-01190

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:

DD 214: XJ. Service/Medical Record: &] Other Records: TI
Related to Post-Service Period:
Employment:. (1 Finances: CI Education/Training: C .
Health/Medical Records: C} Rehabilitation/Treatment: Oo Criminal Records: C]
Personal Documentation: fj. Community Service: CJ References: ~
Department of VA letter: {} Other Documentation: CI
Additional Statements:
From Applicant: L] ‘FromTo Representation: [] From/To Congress member: C]
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. ,

Key: " NFIR - Not found in record RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
————— > a

ccd Docket No. ND13-01190
RR

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

APPLICANT’S ISSUES

1. The Applicant contends his misconduct was due.to the lack of good leadership in his command.
2. The Applicant contends his family hardship led to his misconduct.

DECISION
Date: 20131121 DOCUMENTARY REVIEW Location: WASHINGTON D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

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 case was considered under the pertinent standards of equity to
determine if any factors in this particular case merited clemency. The Applicant’s record of service included one
Special court-martial (SPCM) for violations of the UCM: Article 86 (Absence without leave, 3 specifications: Specification 1:
On or about, 20060131 - 20060215, 16 days; Specification 2: On or about, 20060529 - 2006053 1, 3 days; and Specification 3:
On or about, 20060601 - 20061220, 203 days), Article 87 (Missing movement, 2 specifications of missing the movement of
USS JOHN C. STENNIS), Article 92 (Failure to obey order or regulation, failed to sit down in the LPO’s Office, to stop
walking, and to stand at attention), and Article 112a (Wrongful use, possession, etc., of a controlled substance, 2 specifications
of wrongfully use marijuana). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by
a Special Court-Martial, on 18 January 2007. A qualified legal defense counsel represented the Applicant throughout the trial
by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct
Discharge and confinement for a period of 3 months, with 45 days suspended due to his pre-trial agreement. The case was
submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error, and the findings
were affirmed on 18 July 2007. The Navy Marine Corps Appellate Leave Activity then executed -the Bad Conduct Discharge.

Issues 1-2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his misconduct was due to the
lack of good leadership in his command. The Applicant further contends his family hardship led to his misconduct. 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 bya
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 case was considered
under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found
the evidence of record did not contain sufficient Thitigating or extenuating factors to offset the seriousness of the offenses for
which the discharge was awarded. While the Applicant may feel that his family difficulties and lack of good leadership in his
command were contributing factors to his misconduct, but they do not mitigate his disobedience of the orders and directives
that regulate good order and discipline in the Naval Service. Extended periods of unauthorized absences to include a period of
203 days, missing movement, failure to obey orders and regulations, and the wrongful use of marijuana on multiple occasions
were all conscious decisions to violate the tenets of honorable and faithful service. Clemency denied:

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record
entries, and discharge process, the Board found clemency was not warranted. Therefore, the awarded characterization shall
remain BAD CONDUCT and the narrative reason for separation shall remain COURT-MARTIAL. The Applicant remains
eligible for a personal appearance hearing for 15 ycars from the date of his discharge. The Applicant is directed to the
Addendum for additional information.
my ant
wee Docket No. ND13-01190

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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 Cozps, 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 4 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 docs 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 of 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 alorie 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.

Soard 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