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

Docket No. ND10-01874

ex-BM2, USN

Current Discharge and Applicant’s Request

Application Received: 20100726
Characterization of Service Received: (per DD 214) 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:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USANG - Undetermined dates	Active:	USANG 198806 - 199103 UNCHARACTERIZED 
				(Released for transfer to A/D component) 
	USNR (DEP)	19910302 - 19910421  COG		USN 19910422 - 19950202 HON	
				USN 19950203 - 19981021 HON
		USN 19981022 - 20040115 HON

Period of Service Under Review:
Date of Current Enlistment:  20040116	Age at Enlistment:  33
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20050930	Highest Rank/Rate:  BM1
Length of Service:  01 Year(s)   08  Month(s)   14 Day(s)
Education Level:  11	AFQT:  39
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  2.5 (2)	OTA:  3.21

Awards and Decorations (per DD 214):	Rifle EX, Pistol EX, NCM, NAM (5), AAM, GCM (2), SSDR (4), NAVY "E" (3), NDSM (2), AFEM, 

Periods of CONF:  NONE

NJP:  1

- 20050617:	Article 86 (Unauthorized absence)
	Article 92 (Failure to obey order or regulation)
	Article 134 (Drunkenness) 
	Awarded: RIR RESTR EPD  Suspended:  NONE

SCM:  NONE	CC:  NFIR	Retention Warning Counseling:  NONE

SPCM/GCM:  Unknown charges referred and withdrawn upon Convening Authority’s acceptance of a request for administrative separation in lieu of trial by court-martial.

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910422 UNTIL 040115”
	
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:	☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, 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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge based on the Department of Veterans Affairs (VA) determination that his service was honorable for VA purposes.  The Applicant seeks a change in his discharge that will allow his reinstatement back into the military.

2.	Decisional issues: The Applicant contends that his service records do not show willful or persistent misconduct; as such, the Applicant contends that he warrants an Honorable characterization of service.  The Applicant contends that his misconduct of record warrants consideration and mitigation due to his service in the waters off Somalia, in the Persian Gulf in support of Operation Iraqi Freedom (OIF), and in conducting tsunami relief efforts, which caused his need to self-medicate with alcohol during his last enlistment.

Decision

Date:  20111104	         DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

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.

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 NDRB 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 NDRB’s consideration; additionally, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant was serving on his fourth period of enlistment with the Navy, having honorably completed three enlistment contracts as of January 2004.  The Applicant’s record of service during his current enlistment period included one non-judicial punishment for violation of articles of the Uniform Code of Military Justice: Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), and Article 134 (Drunkenness, 2 specifications).  The Applicant was discharged from the Naval Service due to unspecified misconduct resulting in his request for administrative separation in lieu of trial (SILT) by a special or general courts-martial.  The record documents that the Applicant was not taken to court-martial but was administratively separated from the Navy after requesting separation in lieu of trial by court-martial.  The NDRB presumed regularity in governmental affairs as it did not have the Applicant’s administrative separation package; however, when members submit a request for SILT, they must attest - in writing - to certain conditions and facts prior to approval of their request.  In writing, they must attest to the fact that they were afforded the right to counsel, that they fully understand the elements of the offense(s) for which they were charged, and that they are admitting their guilt to the charges.  Furthermore, they certify that they have a complete understanding of the negative consequences of their actions and that the characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment.  In order to receive the discharge, the command must have referred charges to trial by court-martial, and the Applicant must have submitted a request for SILT that was prepared in accordance with regulations and found to be sufficient in law and fact by competent legal authority before being approved by the Separation Authority.  

Non-Decisional Issue.  The Applicant seeks an upgrade in the characterization of his service at discharge based on the VA determination that his service was honorable for VA purposes.  The Applicant seeks a change in his discharge that will allow his reinstatement back into the military service.  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 or authorize reinstatement into the service.  Only the Board for Correction of Naval Records can make changes to reenlistment codes or reinstate a former service member.  Additionally, the NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional Issue) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his service records do not show willful or persistent misconduct; as such, the Applicant contends that he warrants an Honorable characterization of service.  The Applicant contends that his misconduct of record warrants mitigation due to his service in the waters off Somalia, in the Persian Gulf in support of OIF, and in conducting tsunami relief efforts, which caused his need to self-medicate with alcohol during his last enlistment.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.

Propriety - The Applicant was suspected of committing misconduct that warranted charges being referred to trial by special or general court-martial.  The Applicant requested an administrative separation for the good of the service in order to avoid the punitive effects of a trial by court-martial; he consulted with, and was represented throughout the process by, an appropriately credentialed legal defense counsel.  The command accepted the Applicant’s admission of guilt and his request for administrative separation; as such, the Applicant was separated properly from the Service in accordance with Sections 1910-106 and 1910-230 of the Naval Military Personnel Manual (MILPERSMAN).  Accordingly, relief based on propriety is not warranted.

Equity - The Applicant contends that his service records do not show willful or persistent misconduct; as such, the Applicant contends that he warrants an Honorable characterization of service.  The Applicant completed his first three enlistment periods with an Honorable characterization of service, but each period of enlistment is an independent obligation and characterization is determined for that specific period.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  The Applicant’s command determined that his purported misconduct, coupled with his recent nonjudicial punishment, was conduct that was detrimental to the good order and discipline of the command and the service, did bring discredit upon the service, and determined that his most recent misconduct now warranted punitive action via trial by court-martial.  Facing the punitive actions of a special court-martial, the Applicant requested administrative discharge.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge, however, is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect acts or omissions that constituted a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief is denied.    

The Applicant contends that his misconduct of record warrants mitigation due to his service in the waters off Somalia, in the Persian Gulf in support of OIF, and in conducting tsunami relief efforts, which caused his need to self-medicate with alcohol during his last enlistment.  Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  Moreover, the Applicant’s record of service documents alcohol-related misconduct dating back to the Applicant’s second period of enlistment, wherein he received an NJP for driving under the influence of alcohol (1996 NJP) in violation of Article 111 of the UCMJ.  The abuse of alcohol then continued into his current enlistment with a nonjudicial punishment that included two separate specifications of violating Article 134 (Drunkenness and disorderly conduct).  Ultimately, he was referred to trial by court-martial for unknown charges that resulted in a request for administrative separation in lieu of trial by court-martial.  Though the NJP in the previous enlistment is not considered when determining characterization of service, it may be considered by the command when determining matters of retention.  The Applicant’s record of service documents alcohol abuse resulting in alcohol-related misconduct that preceded his service in tsunami relief efforts or supporting combat operations from the Persian Gulf.  The NDRB determined that relief based on mitigation of the misconduct due to self-medicating with alcohol was not warranted and that the Applicant’s characterization of service at discharge was appropriate.  Accordingly, relief is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water