ex-AO2, USN

Current Discharge and Applicant’s Request
Application Received: 20091215
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	19860404 - 19860902  	Active:	 19860903 - 19920902 (HON)
				         19951002 - 19960902 (NFIR)

Period of Service Under Review:
Date of Current Enlistment:  19961201	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19980522	Highest Rank/Rate:  AO2
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  27
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  2.5 (2)	OTA:  2.50 (2)
Awards and Decorations (per DD 214):	 (3)      

Periods of UA:  19970210 - 19980409 (424 days)

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY MARINE CORPS ACHIEVEMENT MEDAL ARMED FORCES EXPEDITIONARY MEDAL ARMED FORCES SERVICE MEDAL NATIONAL DEFENSE SERVICE MEDAL MERITORIOUS UNIT COMMENDATION SOUTHWEST ASIA SERVCE MEDAL GOOD CONDUCT MEDAL SEA SERVICE DEPLOYMENT RIBBON (3) FLoC LoC”

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19860903 UNTIL 19920902”
	  “MILPERSMAN 1910-106”
	  “IN LIEU OF TRIAL BY COURT MARTIAL”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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:	

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

Applicant’s Issues

1.	Applicant contends his discharge was inequitable based on his UA that resulted from his sister and mother dying during the Christmas and New Year holiday season.
2.	Applicant contends his post-service achievements are indicative of his true character.

Decision

Date:  20110203		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.  The Applicant identified two decisional issues for the Board’s consideration.  Though the Board noted that the Applicant’s service records were incomplete, they did complete a thorough review of the available documentation of circumstances that led to  separation and the separation process to ensure  discharge met the pertinent standards of propriety and equity.  Due to incomplete records, the Board could not determine whether the Applicant had received any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer’s nonjudicial punishment (NJP), or trial by courts-martial.  The record did reflect the Applicant commenced a period of unauthorized absence (UA) on 10 Feb 1997, which ended 424 days later on 9 Apr 1998.  From the “KFS” separation code (block 26) and narrative reason of “separation in lieu of trial by court martial” (block 28) on the Applicant’s DD-214, the Board concluded that the Applicant’s command referred charges on him for trial by punitive court-martial (Special), and he subsequently offered an agreement to plead guilty in exchange for an administrative separation with an Under Other Than Honorable character of service.  The NDRB did not have the Applicant’s request for separation in lieu of trial package to determine the charges and specifications in which he pled guilty or any other factual documentation surrounding the circumstances of his misconduct.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his UA that resulted from his sister and mother dying during the Christmas and New Year holiday season.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  During his separation process, the Applicant requested discharge for the good of the service to escape trial by punitive court-martial.  Though not available for review, in his request for separation in lieu of trial, the Applicant would have noted his rights were thoroughly explained to him and that he elected to waive or exercise his right to consult with a qualified counsel.  Furthermore, the Applicant would have admitted guilt to some or all of the charges preferred against him, certified his complete understanding of the negative consequences of his actions, and that the characterization of service awarded could be Under Other Than Honorable Conditions.  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.  The Board recognizes the gravity of the personal circumstances as claimed by the Applicant on the DD Form 293, Request for Review of Discharge, however, there was no verifiable documentation in the service records or submitted by the Applicant to substantiate his claim or provide evidence that he attempted to contact his command to request extended leave, request a humanitarian transfer, or request a separation due to hardship.  The record did reflect that the Applicant commenced a period of UA on 10 Feb 1997 and he remained absent from his appointed place of duty for 1 year and 2 months (424 days).  With no evidence of mitigating circumstances to affect the propriety or equity of the Applicant’s discharge, the Board presumed regularity and determined this issue did not provide a basis for which relief could be granted.

:  (Decisional) ()  .  The Applicant contends his post-service achievements are indicative of his true character.  The Applicant provided documentation that included two letters of reference from his church leadership.  Though not submitted by the Applicant, documentation could have included: ; letter(s) of recommendation from his employer(s); ; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable).  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides 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 have existed during the period of enlistment in question.  As such, the Applicant's efforts need to be more encompassing.  Without any additional post-service documentary evidence, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and administrative separation in lieu of trial, 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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 
10 July 2000, Article 1910-106, 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 IV, Para 403m(7)(b), 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.

D.  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 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), 2 Navy Annex, Washington, DC 20370-5100 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