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NAVY | DRB | 2006_Navy | ND0601059
Original file (ND0601059.rtf) Auto-classification: Denied

ex-SR, USN
ND06-01059

 Current Discharge and Applicant’s Request :

Application Received:                               20 060809      
Narrative Reason for Separation:                          
                                                      DUE TO
Character of Service:                               
Discharge Authority :                                MILPERSMAN 3630600
Last Duty Assignment/ Command at Discharge:       RTC GLAKES IL

Applicant’s Request:
          Narrative Reason change to:                NOT APPLICABLE
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                             20 070709
The Discharge shall :                     
                                                     
Regarding p ropriety , the Board found the discharge :      
Regarding e quity , the Board found the discharge :         
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       




Applicant’s Issues as Summarized by the Board:
 1. Recruiter promised him Seals program but no guarantee in contract
2. Wants change to RE Code





Summary of Service :

Prior Service:
 Inactive: USNR (DEP)                                19990818-19990916
Active:                                          NONE
Period of Service Under Review :
Date of Enlistment:                                 19990917      
Years Contracted :                                   ;      
Date of Discharge:                                  19991206
Length of Service:                                  00 Yrs 02 Mos 20 Days Does not exclude lost time, if any.
Time Lost During This Period:                      33
Days Unauthorized Absence:                         33
Days Confinement:                                   NONE      

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 71
Highest Rate/Rank:                                   SR

Performance Evaluation Averages (number of marks):
 Performance :                                         N/A
Behavior :                                            N/A
OTA :                                                   N/A
Extracted from:
Applicant’s Supporting Documents Other:      

Awards and Decorations (as listed on the DD Form 214):
NONE




Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19 990929:        Applicant to unauthorized absence at 0230 this date.

 1999 1101:        Applicant from unauthorized absence at 1805 (33 days/surrendered)

19991117 :        NJP for violation(s) of UCMJ:
         Article 86 : Did on or about 19990929, without authority, absent himself from his organization, to wit: Recruit Training Command, and did remain so absent until 19991101 .
         Award: Forfeiture of $ 21 0 for 1 month , restriction and extra duty for 14 days.
         No indic ation of appeal in the record.



Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        19991117
Reason for Discharge                               
                                                     
Least Favorable Characterization:                         
Record Supports Narrative Reason :                         
Date Applicant R esponded to N otification:                 19991117
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               
GCMCA Review                               

Administrative Board Date:                         NOT APPLICABLE
Recommendation of Commanding Officer (date):     NOT APPLICABLE
Discharge directed by (date):                       COMMANDING O FFICER 19991119
Narrative reason directed :                                  
Characterization directed:                                 
Date Applicant Discharged:                         19991206




Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              1
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 3

Total Number of Pages:                              3

D escription of Other Documentation:
        High School Diploma                                 1
         Letter from Applicant, undated                     2


Applicant’s Issues as Summarized by the Board:
1. Recruiter promised him Seal program but no guarantee in contract
2. Wants change to RE Code

The Applicant implies that his misconduct was the result of feeling maltreated over alleged misrepresentations by his recruiter. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

With regard to issue 2, t he Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding Reinlistment.

The Applicant requests a change of the characterization of discharge to general. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service . Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. 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 service was marred by a nonjudicial punishment for a violation of UCMJ Articles 86 (unauthorized absence for more than 30 days). Absences for longer than 30 days are considered serious offenses for which punitive discharges are authorized. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Under usual circumstances his misconduct would have received an Under Other Than Honorable characterization; however the Applicant’s Commanding Officer felt that a less than Honorable discharge was not warranted in his case. Further relief is not warranted.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .
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 (unauthorized absence for more than 30 days .



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 . 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, provi ded 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 grante d 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

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