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NAVY | DRB | 2006_Navy | ND0601136
Original file (ND0601136.rtf) Auto-classification: Denied

ex-MS3, USN
ND06-01136
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:       USS ABRAHAM LINCOLN (CVN 72)

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             
Issues (as summarized by NDRB):                    1. Employment
                                                      2. Youth
                                                      3. Post Service – Employed/Family


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)                                19970322 - 19971007
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19971008
Years Contracted :                                   ;
Date of Discharge:                                  20020523
Length of Service:                                  04 Yrs 07 Mos 15 Days Does not exclude lost time, if any.
Time Lost During This Period:                      277
Days Unauthorized Absence:                         287
Days Confinement:                                   NONE

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 31
Highest Rate/Rank:                                   MS3

Performance Evaluation Averages (number of marks):
 Performance :                                         3.0 (3)
Behavior :                                            3.0 (3)
OTA :                                                   3.10 (3)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFE NS E SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, FIRST GOOD CONDUCT MEDAL FOR PERIOD ENDING 00OCT07, COAST GUARD UNIT COMMENDATION RIBBON, SEA SERVICE DEPLOYMENT RIBBON



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

 20010625:        Applicant to unauthorized absence. [Extracted from DD Form 214 Block 29.]

 20010 6 27:        Applicant from unauthorized absence. [Extracted from DD Form 214 Block 29.]
20010716:        Applicant to unauthorized absence 0730.

20020426:        Applicant from unauthorized absence 1350 (284 days/surrendered) at Naval Station, Everett, WA .

 20020429:        Applicant transferred to TPU Puget Sound, Silverdale, WA.
20020507:         Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did, on or about 20010716, without authority, absent himself from his unit and did remain so absent until on or about 20020429.

20020507 :        Applicant requested an administrative discharge in lieu of a trial by court-martial. The Applicant was informed of his right to c onsult with counsel , however waived this right. Furthermore, he acknowledged u nderst anding the elements of the offense with which he was charged, and admitted guilt to al l the charges preferred against . Specifically, he admitted to violating 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 .
20020508:        Commanding Officer, Transient Personnel Unit Puget Sound , approved the 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 :                           20020507
Member Requested Separation Due To:                       
Characterization Requested:                                 
m ember Recognized Least Favorable:                         
Discharge directed by (date):    COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT PUGET SOUND (20020508)
Narrative reason directed:                                           
Characterization directed:      
Date Applicant Discharged :                                  20020523


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 :                              2
         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:                              2


Discussion

 Issue 1 (employment) : 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 (youth): The Applicant contends that his discharge was inequitable because his punishment was too harsh based on his youth . The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the n aval service. 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. 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief Denied.

Issue 3 (post service – employed/family): The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that 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. The Applicant claimed to be employed and responsible for a family however, provided no documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief Denied.

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 29, effective 11 Jul y 2000 until 21 Aug ust 2002,
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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