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

Docket No. ND07-00160

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

ex-SH3, USN
ND07-00160

Current Discharge and Applicant’s Request

Application Received:  20061120 	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL Authority:  MILPERSMAN 3630650

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)  
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. None Stated
			
Decision

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.

Date:  20070912    Location:  Washington D.C.  The Board found that the discharge was proper and equitable.

Discussion
When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by a pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ) Article 86.  Violation of UCMJ Article 86, Unauthorized Absence (more than 30 Days and terminated by apprehension), is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  Sailors may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Sailor is unqualified for future military service.  The Applicant, after consultation with Defense Council, willfully signed his request.  A change of Characterization of Service would be inappropriate.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19861124 - 19870203  COG		Active:   USN	19870204 - 19901104  HON
USN	19901105 - 19930204  HON					USNR	19950829 - 19951128  HON
USNR	19951129 - 19960402  HON
Period of Service Under Review:
Date of Enlistment: 19960403		Years Contracted:  3	Date of Discharge:  19970731
Length of Service:  01  Yrs  03  Mths  29  Dys	Lost Time:  Days UA:  163  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  27	AFQT:  28	Highest Rank/Rate:  SH3
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A
Awards and Decorations (per DD 214):  SEA SERVICE DEPLOYMENT RIBBON(2^ND), MERITORIOUS UNIT COMMENDATION, NAVY "E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL(2^ND)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19961220:	Applicant declared UA.

19961220:	Applicant missed ship’s movement.

19970124:	Applicant declared a deserter.

19970531:	Applicant from desertion by apprehension.
Discharge Process

Charge(s) Preferred:	19970611
Charge(s) and Specification(s):
	Article 86: Unauthorized absence from 19961220 until apprehended on 19970331

Date Applicant Submitted SILT request:		19970630
	Consulted with or Waived Counsel:		YES
	Acknowledged Understanding Elements:	YES
	Acknowledged Guilt to:			Article(s) 86
		BCD/DD authorized for offense(s)	YES
	Acknowledged Consequences of OTH:	YES
	Type of Characterization Requested:	UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	NOT APPLICABLE
Separation Authority (date):			COMMANDING OFFICER, USS KITTY HAWK (CV 63) (19970715)
	Reason for Discharge directed:		IN LIEU OF TRIAL BY COURT-MARTIAL
	Characterization directed:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			19970731

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☐	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, 
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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.

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 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:  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