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NAVY | DRB | 2007_Navy | ND0700003

Original file (ND0700003.rtf) Auto-classification: Denied

ex-AN, USN
ND07-00003

Current Discharge and Applicant’s Request:

Application Received:                               20 0 60926
         Characterization of Service:
         Reason for Discharge :
         Discharge Authority :                       MILPERSMAN 3630650
         Duty Assignment/ Command at Discharge:    uss america ( cv-66 )

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:                          Personal appearance changed to
         Representation:
         Issues (as summarized by NDRB):          1. Deserted as a result of low military pay and needing to make more                                                           money to pay bills.
                                                      2. Post Service – No trouble since leaving the Navy.


Decision:

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

Date of Decision:                                            20 070816
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:

Discussion

Decisional Issues:

Issue 1 ( ): The Applicant contends that his extended unauthorized absence was the result of low military pay and the need to make more money to pay his bills. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. In t he Applicant’s case his enlistment was marred by a violation of UCMJ Article 86 (unauthorized absence , 1255 days ). T he Applicant’s DD-214 indicates that he requested discharge for the good of the service to escape trial by court-martial. Violations of UCMJ Article 86, unauthorized absen ce in excess of 30 days, carry a maximum penalty of a Dishonorable Discharge and 1 year of imprisonment if adjudicated by a court martial. In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant had a complete understanding of the negative consequences of his actions. 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 service.

Issue 2 ( ): The Applicant contends that he has not been any trouble since being discharged from the U. S. N avy. 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 provided no documentation of his 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, and certification of non-involvement with civil authorities. The Board determined that the statement provided by the Applicant did not mitigate the misconduct which resulted in his characterization of service at the time of discharge.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19921022 - 19930622
Active:

Period of Service Under Review :
Date of Enlistment:                                 19930623
Years Contracted :
Date of Discharge:                                  19980127
Length of Service
         Active:                                     4 Yrs 7 Mths 5 D ys ( d oes not exclude lost time)
         Time Lost During This Period:             Days UA: 1255 da ys       Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 35
Highest Rate/Rank:                                   AN

Performance Evaluation Averages (number of marks):
                                                      Performance : 3.6 Behavior : 3.6 OTA : 3.60 (1)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERFVICE MEDAL; SOUTHWEST ASIA SERVICE MEDAL W/BRONZE STAR, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Reason for Discharge

19940610:        Applicant to unauthorized absence at 0600 .

19940710:        Applicant declared a deserter.

19971118:        Applicant to Branch Clinic, NAS, Jacksonville, FL for brig physical.

19980127:        Applicant discharged.

Elements of Discharge: [SEPARATION IN LIEU OF TRIAL]

Date Charge(s) Preferred:                                   NOT FOUND IN RECORD
Charge(s) and Specification(s):                   NOT FOUND IN RECORD
Date Applicant Submitted SILT request:            NOT FOUND IN RECORD
         Consulted with or Waived Counsel:
         Acknowledged Understanding Elements:
         Acknowledged Guilt to:                     NOT FOUND IN RECORD
         BCD/DD authorized for offense(s)
         Acknowledged Consequences of OTH:
         Type of Characterization Requested:      NOT FOUND IN RECORD

Commanding Officer Recommendation (date):
Separation Authority (date):                       NOT FOUND IN RECORD
         Reason for Discharge directed:
         Characterization directed:
Date Applicant Discharged :                         19980127

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               2

Related to Period of Service Under Review :
         From Service and/or Medical Record :                Other Records :

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                           Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant :             From Representative:
        Other Documentation (Describe)

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 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, 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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NAVY | DRB | 2007_Navy | ND0700003

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