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NAVY | DRB | 2014_Navy | ND1400838
Original file (ND1400838.rtf) Auto-classification: Denied

ex-STSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20140401
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)        19951220 - 19960108     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960109     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000821      Highest Rank/Rate: STSSA
Length of Service: Year(s) Month(s) 13 D ay(s)
Education Level:        AFQT: 64
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 3.32

Awards and Decorations ( per DD 214):      NONE

Period of TL: 19 99 02 13 - 2000 08 21 (554 days )

NJP :

- 19970826 :      Article (Larceny and wrongful appropriation)
         Awarded: Suspended:

S CM :    CC:

SPCM:

- 19990208 :       Art icle (Larceny and wrongful appropriation , 6 s pecifications )
         Art icle (General A rticle, mail: taking, opening, secreting, destroying, or stealing )
         Sentence :

Retention Warning Counseling :

- 19960307 :       For failure to disclose traffic citation for speeding, 09/95, Cypress, TX. Fine paid in full 02/96 per receipt from Harris County Auditor, Harris County, TX.
- 19961029 :       For substandard performance. Over the past four weeks you have repeatedly failed to go to your appointed place of duty at the appointed time. Specifically , you were late for a weapons load muster on 25 September 1996. You were late for work on 3 October 1996 by 4 hours , and you were late for work again the following day. You were late for duty section muster on 24 October 1996 by one hour. Several counseling sessions have failed to correct this habitual deficiency. You have failed to maintain sufficient progress in ship’s and divisional qualifications, therefore , being placed in a delinquent status for both. You were found to be out of uniform on 24 October 1996 by having seaman stripes on your working blue uniform.


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), Change 22, effective 15 December 1998 to 21 August 2002, 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 .


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

Applicant’s Issues

 1.        The Applicant contends his discharge was based on an isolated incident in 36 months of service with no other adverse action .
2.       The Applicant contends there were mitigating circumstances , such as his Traumatic Brain Injury (TBI), and justifications both before and during his Special Court - Martial that should have been taken into consideration .
 3.       The Applicant contends his post-service conduct is worthy of an upgrade .

Decision

Date : 20 1 4 0904            Location: Washington D.C .        R epresentation :

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

Discussion

 As a result of the Applicant’s claim of TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.
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 NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 121 ( Larceny and wrongful appropriation) , and for of the UCMJ: Article 121 ( Larceny and wrongful appropriation , 6 specific ation s) and Article 124 (General A rticle, mail: taking, opening, secreting, destroying, or stealing) . On 8 January 1999 , the Applicant entered into a Pre-Trial Agreement to reduce his sentence at a S pecial C ourt- M artial . Based on the Applicant ’ s conviction and sentence at a S pecial C ourt- M artial, he was reduced in rank and separated with a punitive Bad Conduct Discharge. The Applicant fully exercised his post-trial rights to request clemency and receive a legal review based on his claim for an assignment of error . The Navy-Marine Corps Court of Criminal Appeals found his claim for an assignment of e rror to be without merit on 17 May 2000. The Applicant’s conviction and sentence were fully reviewed and affirmed through the Navy-Marine Corps Court of Criminal Appeals , and the Bad Conduct Discharge was ordered executed on 21 August 2000 .

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 36 months of service with no other adverse action . The Applicant’s service record clearly shows he had misconduct before his Special Court-Martial that included an NJP for larceny and two retention warnings for failure to disclose a traffic citation, significant periods of being late to work, and the unauthorized wearing of rank insignia above his current paygrade. Further, the Special Court-Martial conviction was for taking two pieces of mail containing an ATM card and PIN number belonging to a shipmate without authorization to do so and using this ATM and PIN card on six different occasions in multiple ports over the span of 20 days to wrongfully obtain funds. The NDRB determined this issue did not warrant clemency. Clemency denied.






: (Decisional) ( ) . The Applicant contends there were mitigating circumstances , such as his TBI, and justifications both before and during his Special Court - Martial that should have been taken into consideration . In the Applicant’s claim of injustice to th e NDRB, he states that after he signed his pre - trial agreement , he departed for appellate leave and was not able to defend himself at his court-martial. The verbatim record of trial , however, clearly shows the Applicant participated fully in his Special Court-Martial. The Applicant also contends he was coerced into pleading guilty and was not afforded the opportunity to have an adequate counsel represent him at his court-martial. The record of trial shows the Applicant signed documentation stating he was satisfied with his counsel and verbally affirmed the same during his court-martial. The record further shows his counsel was able to have either dropped, withdrawn, or found not guilty additional charges levied against him , specifically , two violation s of UCMJ Article 121 and three violations of UCMJ Article 134. This counters the Applicant’s argument that his counsel “went along to get along. ”

T he NDRB requested the Applicant’s medical treatment records, but the Department of Veterans Affairs was unable to locate them. The Applicant submitted a Non-Naval Healthcare Claim Form from 7 May 1998 that indicates the Applicant received emergency medical treatment in a foreign port for a “head/neck injury due to blow to head.” T he NDRB did not find any reference to a medical diagnosis of TBI in the Applicant’s service record to support his claim. Though the Applicant may feel that TBI was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined TBI did not mitigate his misconduct. Stealing a fellow shipmate ’ s mail and using the stolen mail to wrongfully appropriate over $1 , 800 of the other S ailor ’ s funds on six occasions over a 20 day period were all conscious , methodical decisions to violate the ten ets of honorable and faithful service and do not warrant clemency . Clemency denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of 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. Besides the Applicant’s statement on the DD Form 293 and his attached personal statement , 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 clemency as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined clemency is not warranted. Clemency denied.
Summary: 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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