Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-01018

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

Docket No. NDXX-00000

ex-AN, USN
ND06-01018

Current Discharge and Applicant’s Request:

Application Received:  				20060703
Narrative Reason for Separation:			IN LIEU OF TRIAL BY COURT MARTIAL
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MILPERSMAN 1910-106
Last Duty Assignment/Command at Discharge:	USS HARRY S TRUMAN CVN 75

Applicant’s Request:
	Narrative Reason change to:		none requested
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070621
Location of Board:				Washington D.C.
Complete Service Record:				NO
Complete Medical Record:			NO
Complete Discharge Package:			NO

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT-MARTIAL.

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20030626 - 20030928 COG
Active:   NONE

Period of Service Under Review:
Date of Enlistment:  				20030929
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20041222
Length of Service:				01  Yrs  02  Mos  24  Days

Does not exclude lost time, if any.

Time Lost During This Period:			51 DAYS
	Days Unauthorized Absence:		51
	Days Confinement:			None   

Education Level:  				10
Age at this Enlistment:  				21
AFQT:  						67
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks): NONE FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040907:	Applicant to unauthorized absence at 2359.

20040908:	Applicant missed ship’s movement.

20041006:	Applicant declared a deserter.

20041129:	Applicant from unauthorized absence at 0650 (51 days/surrendered).

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

Record not available.

Elements of Discharge [REQUESTED BY MEMBER]

Discharge Process:					IN LIEU OF TRIAL BY COURT MARTIAL
Date Member Requested Separation:			NOT FOUND IN RECORD
Charge Preferred Authorizing Punitive Discharge:		PRESUMED
Member Acknowledged Guilt to Offense(s):			PresumeD
Characterization Requested, if any:				not found in record
member Recognized Least Favorable:			PRESUMEd
Recommendation of Commanding Officer (date):		NOT FOUND IN RECORD
Separation Authority (date):				NOT FOUND IN RECORD
Narrative reason directed:					PRESUMED
Characterization directed:					PRESUMED

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		1

        Total Number of Pages:				3

       Description of Other Documentation:
       Letter from Congress of the United States to Capt E_ G_, Director, House of Liaison Office

Applicant’s Issues as Summarized by the Board:
1.  Need upgrade to enlist in Virgin Islands Army National Guard
2.  Didn’t return from leave because shipmate had set bunk on fire.

Issue 1:  The Board determined that this Issue is not an Issue which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Decisional Issues:
The Board considered the following issue(s):     

Issue 2 (Propriety).  In reviewing discharges, the Board 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.  In this case, the Board found evidence in the record, and Applicant acknowledges, a period of unauthorized absence for which a punitive discharge is authorized at court-martial.  In the absence of the discharge package, the Board presumed that the requirements for administrative separation in lieu of trial by court-martial were met.  Specifically, the Board presumed that a charge was preferred against Applicant for violation of a UCMJ offense for which a punitive discharge is authorized; that the Applicant consulted with, or waived his right to consult with, counsel; that Applicant submitted a proper request for administrative separation in lieu of trial by court-martial, in which he admitted guilt to a preferred charge for which a punitive discharge is warranted, acknowledged his understanding that the least favorable characterization of service he could receive was “under other than honorable conditions” and the consequences thereof in civilian life, and that his request was properly approved by appropriate authority.  The Board determined that the Applicant’s uncorroborated claim of a shipmate’s starting a fire did not constitute a lawful defense to his unauthorized absence nor rebutted the presumption of regularity attending the normal discharge process.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

Not applicable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, Absence without leave for greater than 30 days.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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