Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-00682

ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20100111
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge: (per DD 214) MILPERSMAN 1910-106 [IN LIEU OF TRIAL BY COURT MARTIAL]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	General with exception-to-policy

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20010622 - 20010628  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20010629	Age at Enlistment:  23
Period of Enlistment:  NFIR Years  NO Extension
Date of Discharge:  20020405	Highest Rank/Rate:  FR
Length of Service:  00 Year(s)   09  Month(s)   07 Day(s)
Education Level:  NFIR	AFQT:  56
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE
Periods of UA: 01 July 16 to 02 Feb 18 (218 days) 

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

NDRB Documentary Review Conducted (date):	20070522
NDRB Documentary Review Docket Number:	ND07-00777
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:	☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until 
21 August 2002, 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.

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

Applicant’s Issues

1.	Post-service
Decision

Date:  20110406     PERSONAL APPEARANCE HEARING	 Location:  Washington D.C.	Representation:  American Legion

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

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’s record of service included no NAVPERS 1070/613 (Page 13) warnings or misconduct resulting in non-judicial punishment (NJP) or court-martial.   The Applicant did not have a pre-service drug waiver.  Based on approval of the Applicant’s request for separation in lieu of trial by court-martial (SILT), the Applicant was separated with an Under Other Than Honorable Conditions characterization of service.  In order to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement.  They must also fully understand the elements of the offense for which they were charged and they must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions (OTH), which might deprive them of virtually all veterans' benefits based upon their current enlistment, and that they might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. 

Issue 1:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant requested that the NDRB consider his post service conduct as a basis for a more thorough understanding of his performance and conduct during the period of service under review.  The Applicant provided documentation showing steady employment, completion of education and training, evidence of a clean criminal record, as well as several character reference letters.  The Applicant also testified substantially under oath, and was found to be credible by the members of the NDRB.  The NDRB determined the Applicant’s post-service conduct to be substantial, and instructive regarding his post-service character.  Taken in concert with unique circumstances surrounding his period of service and the misconduct of record, the NDRB found partial relief in an upgrade to General (Under Honorable Conditions) to be warranted on equitable grounds, but that no change to the narrative reason for separation was warranted.  Full relief was not granted due to the serious nature of the misconduct.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s sworn testimony, summary of service, service record entries, and discharge process, the NDRB found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

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