Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601135

Original file (ND0601135.rtf) Auto-classification: Denied

ex-SA, USN
ND06-01135

Current Discharge and Applicant’s Request:

Application Received:                               20 060829
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 1910-106
Last Duty Assignment/ Command at Discharge:       TPU GREAT LAKES

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:
Issues (as summarized by NDRB):                   1. Reenlist
                                                      2. No command support


Decision:

Date of Decision:                                            20 070727
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 Narrative Reason shall .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19981016 - 19990706
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19990707
Years Contracted :                                   ;
Date of Discharge:                                  20000427
Length of Service:                                  00 Yrs 09 Mos 21 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      49
Days Unauthorized Absence:                         50
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 78
Highest Rate/Rank:                                   SA

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): NONE

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

20000202:        Retention Warning: Advised of deficiency (Article 92 - Disobey a lawful general regulation by wrongfully consuming an alcoholic beverage while under the age of 21.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20000220:        Applicant to unauthorized absence 1300.

20020322:        Applicant declared a deserter.

20000410:        Applicant from unauthorized 1545 (50 days/surrendered).

20000413:        Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: On or about 1300, 20000220, without authority, absent himself from his organization, and did remain so absent until on or about 1545, 20000410.

20000413 :        Applicant requested an administrative discharge in lieu of a trial by court-martial. Fully advised of his rights the Applicant elected to waive his right to consult with counsel . 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 guilt for the violat ion of UCMJ, Article 86 (unauthorized absence) . 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.

20000414:        Commanding Officer, Transient Personnel Unit, Great Lakes , approved the Applicant’s request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge with a characterization of service as under other than honorable conditions .

Elements of Discharge: [REQUESTED BY MEMBER]

Discharge Process:                                            Voluntary: Requested by Member
Date Member Requested Separation :                           20000413
Member Requested Separation Due To:
Characterization Requested:
m ember Recognized Least Favorable:
Discharge directed by (date):    COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, GREAT LAKES (20000414)
Narrative reason directed:
Characterization directed:       under other than honorable conditions
Date Applicant Discharged :                                  20000427

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 :                            3
         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)                 0

Total Number of Pages:                            3

Discussion

Issue 1 (reenlist) : 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:

Issue 2 (equity) (No command support): In the Applicant’s letter to the Board he states that h is misconduct was the result of being sexual harassed and subsequently no action was taken by his chain of command. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was sexually harassed and after reporting no action w as taken. However, even if the Applicant could document h is claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his rights were thoroughly explained to him and that he waived his right to consult counsel . Furthermore, the Applicant admitted guilt to the chargers preferred against him , violation of UCMJ Article 86 (unauthorized absence, 50 days). He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. Violations of UCMJ Article 86, unauthorized absence in excess of 30 days, carries a maximum penalty of a Bad Conduct Discharge and 1 year of imprisonment if adjudicated by a court martial . 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 and falls far short of that required for an upgrade of his characterization of s ervice. Relief denied.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec ember 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 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 in excess of 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, 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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NAVY | DRB | 2006_Navy | ND0601135

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