Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700113

Original file (ND0700113.rtf) Auto-classification: Denied

ex-CA, USN
ND07-00113

Current Discharge and Applicant’s Request

Application Received: 20061102 Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT MARTIAL Authority: MILPERSMAN 1910-106

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Requests Characterization change to improve employment opportunities
                           2. R equests Characterization change, Applicant’s character has changed

Decision

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

Date: 20 070830 Location: Washington D.C. The Board found that

Discussion

Issue 1: 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 .

Issue 2: ( ). 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, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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 one statement as documentation that he has matured in his post-service life. 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 documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge .

The Board presumes 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 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.

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20010531 - 20010628     Active:
Period of Service Under Review:
Date of Enlistment: 20010629      Years Contracted : ; Extension:          Date of Discharge: 20021022
Length of Service : 01 Yrs 03 Mths 24 D ys          Lost Time : Days UA: 260 ays Confine d :
Education Level:         Age at Enlistment:       AFQT: 35          Highest Rank /Rate : EOCN
Evaluation marks (# of occasions):       Performance: N/A ( )        Behavior: N/A ( ) OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20020930:        Applicant’s statement.

SEPARATION IN LIEU OF TRIAL

Discharge Process

Date Charge(s) Preferred:                                   20020930
Charge(s) and Specification(s):
         Article 86: : Unauthorized absence from 0445, 20020107 until 0900, 20020924 ( 259 days/apprehended).

Date Applicant Submitted SILT request:            20020930
         Consulted with or Waived Counsel:
         Acknowledged Understanding Elements:
         Acknowledged Guilt to:                     Article(s) 86
                  BCD/DD authorized for offense(s)
         Acknowledged Consequences of OTH:
         Type of Characterization Requested:

Separation Authority (date):                       COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, GREAT LAKES, ( 20021003 )
         Reason for Discharge directed:
         Characterization directed:
Date Applicant Discharged :                         20021022 discharged in absentia

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

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

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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 .

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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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.

Employmen t / 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 | ND0700113

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