Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Vasquez, Catalina M CPL CORB, PEB
Company: NCPB

Docket No. ND14-01634

ex-AOAN, USN

Current Discharge and Applicant’s Request

Application Received: 20140828
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)	19981113 - 19981130  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  19981201	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19990916	Highest Rank/Rate:  AOAN
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  80
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Period of UA: 19990504-19990814, 79 days.  

IHCA: 19990814-19990817 (Extracted from second endorsement of Request for Administrative Discharge Under Other Than Honorable Conditions In Lieu Of Trial By Court-Martial dated 19990907.)

Period of CONF:  

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

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 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 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.	The Applicant contends that he was discharged without compliance with MILPERSMAN and requests a narrative change to secretarial authority as well as an appropriate RE code change. 
2.    The Applicant contends that his capability to serve was impaired by family issues.
3.    The Applicant contends that his National Guard service should be considered to understand his unauthorized absence. 
4.    The Applicant contends that his National Guard service should be considered under quality of service. 

Decision

Date:  20150408		Location:  Washington D.C.	Representation:  

Pending results of hearing

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code shall  .

Discussion
Pending results of hearing

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial.   However, the Applicant had a 79 days period from 19990504 – 19990814 in which he was in an unauthorized leave status.  Instead of having the charges adjudicated at court-martial, the Applicant was discharged in liew of trial by court-martial.  Although the record did have a copy of the letter, there is evidence to support the fact that the Applicant submitted his request in lieu of trial by court- martial on 19990902.  One of the enclosures listed as enclosure (3) on the Recommendation for Administrative Discharge Under Other Than Honorable Conditions In Lieu Of Trial By Court-Martial dated 19991025, is a copy of the Applicant’s letter of 2 Sep 99.  On this same document, enclosure (2) is the first endorsement of 2 Sep 99.  The only letter submitted from the Applicant that would require an endorsement would have been his request to separate in lieu of trial by court-martial.  

:  (Decisional) ()  .  The Applicant contends that he was discharged without compliance with MILPERSMAN and requests a narrative change to secretarial authority as well as an appropriate RE code change.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  Although the record did not have a copy of the letter, there is evidence to support the fact that the Applicant submitted a request in lieu of trial by court-martial on 19990902.  One of the enclosures listed as enclosure (3) on the Recommendation for Administrative Discharge Under Other Than Honorable Conditions In Lieu Of Trial By Court-Martial dated 19991025, is a copy of the Applicant’s letter of 2 Sep 99.  On this same document, enclosure (2) is the first endorsement of 2 Sep 99.  The only letter submitted from the Applicant that would require an endorsement would have been his request to separate in lieu of trial by court-martial.  

Pursuant to MILPERSMAN 1910 -106, the Applicant was required to acknowledge that the Applicant’s counsel had fully explained the elements of the offenses for which the Applicant was charged and that he was guilty of those offenses.  The record shows the Applicant certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment.  The Applicant admitted during his personal hearing that he was contacted by his lawyer but does not remember any specifics explained to him or signing any documentation accepting an Under Other Than Honorable characterization of service.  However, a preponderance of the evidence supported the fact that the Applicant did submit a request, admitted guilt to charges that were pending adjudication in a court-martial, and that an Under Other Than Honorable characterization of service would be granted.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his discharge was not in compliance with the MILPERSMAN.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends that his capability to serve was impaired by family issues.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those servicemembers who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  Through the Applicant’s own admission during his personal hearing, the Applicant believed that his chain of command made every effort possible to get him to return to duty within days of him being in an unauthorized absence status.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his willful misconduct.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that his National Guard service should be considered to understand his unauthorized absence and his post Navy quality of service.  The NDRB considers 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.  The Applicant provided a personal statement, a marriage certificate, evidence of a Bachelor’s Degree, evidence of continued service in the Army National Guard, accolades and awards from the Army National Guard, and several character references.  The Applicant could have provided additional documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Furthermore, the Applicant was separated with an Under Other Than Honorable discharge due to separation in lieu of trial by court-martial and it is extremely rare for the NDRB to grant full relief under these circumstances.  To warrant a full upgrade, the Applicant’s post-service efforts need to be more encompassing.  However, the Board did determine that the documentation submitted by the Applicant demonstrate that his in-service misconduct was an aberration.  Although appropriate at the time of discharge, the Board determined that the Applicant’s post service efforts are worthy of partial relief and an upgrade to General (Under Honorable Conditions) is warranted.  Partial relief warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on the Applicant stellar post-service efforts, the NDRB found that partial relief should be given.  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.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	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	CBW - 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