ex-AR, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20000212 - 20000622     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20000623    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20031210     Highest Rank/Rate: AA
Length of Service: Year(s) Month(s) 18 Day(s)
Education Level:        AFQT: 37
Evaluation Marks:        Performance: 3.0 (1)     Behavior: 1.0 (1)       OTA: 2.67

Awards and Decorations (per DD 214):    

NJP:

- 20001207:      Article 2 specifications
         Awarded: Suspended: (Vacated 20010320)

- 20010320:      Article 3 specifications
         Article
         Article
         Awarded: Suspended:

- 20010620:      Article
         Article 3 specifications
         Article 4 specifications
         Awarded: Suspended:

SCM:

SPCM:

- 20020830:      Article 4 specifications
         Specification 1: On or about 20020321 until on or about 20020322 (1 day)
         Specification 2: On or about 20020416 until on or about 20020513, (28 days)
         Specification 3: On or about 20020516 until on or about 20020724, (70 days
         Specification 4: On or about 20020522 until on or about 20020725, (3 days)
         Article
         Article 112a (Wrongful use, possession, etc., of controlled substances; marijuana) 2 specifications
         Specification 1: On or about 20020521
         Specification 2: On or about 20020805
         Article
         Sentence: 135 days (20020725-20020924, 62 days)
         Convening Authority Action: The part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 75 days is suspended for 12 months from the date the sentence was announced, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

CIVIL ARREST:

- 20020521:      Charges: Fraudulent check writing [Extracted from Verbatim Record of Trial conducted on 20020830]

- 20020717:      Charges: Obstructing justice and criminal trespass [Extracted from Verbatim Record of Trial conducted on 20020830]

CC:

Retention Warning Counseling:

- 20010124:      For the following deficiencies in your performance and/or conduct: your display of poor judgment, poor impulsive control, aggressive behavior, and personal irresponsibility; more specifically, your unsatisfactory performance or conduct as evidenced by your lack of reasonable effort with your participation in a breach of the peace by becoming argumentative in behavior and aggressiveness while under the influence of alcohol.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 .

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

Applicant’s Issues

1.       The Applicant contends that he had a very difficult time adjusting to the military lifestyle due to his young age at the time of his enlistment and despite having requested assistance with making lifestyle adjustments.

Decision

Date: 20150910            Location: Washington D.C.        Representation:

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 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 NAVPERS 1070/613 (Page 13) warning, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, four specifications), Article 121 (Larceny, one specification), Article 128 (Assault, three specifications), and Article 134 (General article, seven specifications); and for of the UCMJ: Article 86 (Absence without leave, four specifications), Article 107 (False official statements, one specification), Article 112a (Wrongful use, possession, etc., of controlled substances; marijuana; 2 specifications), and Article 134 (General article, one specification). The Applicant also had two civil arrests for fraudulent check writing, obstructing justice, and criminal trespass. The Applicant did not have a pre-service drug waiver prior to entering the Navy. Based on the Applicant's 30 August 2002 pre-trial agreement and subsequent conviction and sentence at a special court-martial, he was confined and separated with a Bad Conduct characterization of service. The record shows the applicant fully exercised his rights during the Appeals process. After careful consideration of the record, submitted without specific assignments of error, the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the findings and sentence as approved by the convening authority on 19 August 2003. On 19 November 2003 the Navy and Marine Corps Appellate Leave Activity promulgated Special Court-Martial Supplemental Order No. 03-2023 finally affirming the NMCCA No. 200300268 verdict and ordered the Applicant’s Bad Conduct Discharge to be executed.

: (Decisional) () . The Applicant contends that he had a very difficult time adjusting to the military lifestyle due to his young age at the time of his enlistment and despite having requested assistance with making lifestyle adjustments. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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 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 mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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