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NAVY | DRB | 2006_Navy | ND0601084
Original file (ND0601084.rtf) Auto-classification: Denied

ex-DC3, USN
ND06-01084
Current Discharge and Applicant’s Request:

 Application Received:                               20 060816
Narrative Reason for Separation:                           IN LIEU OF TRIAL BY COURT MARTIAL
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-106
Last Duty Assignment/ Command at Discharge:       USS LAKE ERIE (CG 70)

Applicant’s Request:
          Narrative Reason change to:                None ReQUESTED
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             
Issues (as summarized by NDRB):                    1. Re-enlist
                                                     

Decision:

 Date of Decision:                                            20 070719      
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        

By a vote of the Characterization shall .     
By a vote of the Reason for Discharge shall IN LIEU OF TRIAL BY COURT MARTIAL .


Summary of Service:

 Prior Service:
 Inactive:                                            NONE
Active: USN                                          20001127 - 20040129      HON
Period of Service Under Review :
Date of Enlistment:                                 20040130
Years Contracted :                                        
Date of Discharge:                                  20040930
Length of Service:                                  00 Yrs 08 Mos 01 Days Does not exclude lost time, if any.
Time Lost During This Period:                      155
Days Unauthorized Absence:                         155
Days Confinement:                                   NOT FOUND IN RECORD

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 54
Highest Rate/Rank:                                   DC3

Performance Evaluation Averages (number of marks):
 Performance :                                         N/A
Behavior :                                            N/A
OTA :                                                   N/A

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE AWARD, SEA SERVICE DEPLOYMENT RIBBON, NAVY UNIT COMMENDATION MEDAL



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

 20040130 :        Reenlisted this date for a term of 4 years.

20040324:        Applicant to unauthorized absence, missed movement of USS LAKE ERIE (CG 70).

 2004032 9:        Applicant missed movement of USS LAKE ERIE (CG 70).

20040422:        Applicant declared a deserter.
20040804:        Applicant apprehended by Cherokee County Sheriff Office, Tahlequah, OK.
20040921 :        Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Charge I: A rticle 86: On or about 20040324, without authority, absent from unit, and did remain so absent until he was returned to military control on 20040826. Charge II: Article 87 (2 specifications): Specifications 1: On or about 20040324, through design miss the movement of the USS LAKE ERIE. Specification 2: On or about 20040329, through design miss the movement of the USS LAKE ERIE.

20040913 :        Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. H e consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86 (unauthorized absence) and Article 87 (missing movement) . The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he 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.

20040922:        Commanding Officer, Navy Region South West , approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

Elements of Discharge: [REQUESTED BY MEMBER]

 Discharge Process:                                            Voluntary: Requested by Member
Date Member Requested Separation :                           20040913
Member Requested Separation Due To:                       
Characterization Requested:                                 
m ember Recognized Least Favorable:                         
Discharge directed by (date):    COMMANDING OFFICER, NAVY REGION SOUTHWEST TRANSIENT PERSONNEL UNIT 20040923
Narrative reason directed:                                           
Characterization directed:                                          
Date Applicant Discharged :                                  20040930


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)                 1

Total Number of Pages:                              2

Other Documentation: Letter from Arkansas National Guard recruiter.

Discussion

 Issues 1 (Re-enlist) : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

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), re-issued October 2002, effective 22 Aug ust 2002 until
30 May 2005, 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 II , Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity.



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, provided 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 granted 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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