Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700278

Original file (ND0700278.rtf) Auto-classification: Denied

ex-STG3, USN
ND07-00278

Current Discharge and Applicant’s Request

Application Received: 20070104 Characterization Received:

Narrative Reason: OTH IN LIEU OF COURT-MARTIAL Authority: MILPERSMAN 1910-106

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: “General Statement of release from service ”
Applicant’s Issues:       1. Reenlistment
                           2. Isolated incident/family problems
                           3. Post service - College

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 071001                                     Location: Washington D.C.

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 Applicant states his discharge was based on one isolated incident during a time of multiple personal and family problems . Despite a serviceme mber’s prior record of service certain serious offenses warrant separation from n aval service in order to maintain proper order and discipline. The record documents the Applicant’s extended unauthorized absence and subsequent request for discharge in lieu of trial by court martial ( which is the basis for his discharge ) . The Applicant waived his right to consult an attorney, admitted guilt to the charges preferred against him, acknowledged the under other than honorable conditions characterization of service and the future ramifications of such a characterization of service. Regulation limits the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge prop er and equitable.

Issue 3 ( ): 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. 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 a college transcript and several reference letters in addition to his statement as 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 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 misconduct which resulted in the Applicant’s discharge and characterization of his service.

With regard to the Applicant’s request for a narrative reason change : The Command ing Officer, Naval Air Station, Pensacola exercising special courts martial convening authority in accordance with the Naval Military Personnel Manual, (NAVPERS 15560C ) accepted the Applicant’s request for separation in lieu of court martial and so directed his discharge. The Applicant’s summary of service documents his 74 day unauthorized absence. Violations of the UCMJ Article 86 (unauthorized absence in excess of 30 days) carry a penalty of a dishonorable discharge and up to a year of imprisonment if adjudicated by a court martial. Since no other narrative reason for separation could more clearly describe why the Applicant was disc harged a change would be inappropriate.

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19980320 - 19980810              Active: 19980811 - 19980915 ELS
Inactive: USNR (DEP)     19991216 - 19991227               Erroneous enlistment – medical; RE-3G
Period of Service Under Review:
Date of Enlistment: 19991228      Years Contracted :                 Date of Discharge: 2 0030402
Length of Service : 03 Yrs 01 Mths 08 D ys                   Lost Time : Days UA: 74
Education Level:         Age at Enlistment: 20     AFQT: 82          Highest Rank /Rate : STG3
Evaluation marks (# of occasions):       Performance: 3.7                  Behavior: 4.3     OTA: 3.4 8 (3)
Awards and Decorations ( per DD 214): NATO MEDAL, OVERSEAS SERVICE RIBBON, NATIONAL DEFENSE SERVICE MEDAL

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

20021125:        Applicant to unauthorized absence, from US Naval Forces Marianas, Guam.

20030110:        Applicant declared a deserter.

20030207:        Applicant from unauthorized absence.

Discharge Process
Charge Preferred:                                   20030224
Charge and Specification:        Article 86 : unauthorized absence from 20021125 until 20030207 (74 days) .

Date Applicant Submitted SILT request:            20030305
         Consulted with or Waived Counsel:
         Acknowledged Understanding Elements:
         Acknowledged Guilt to:                     Article 86
                  BCD/DD a uthorized for offense
         Acknowledged Consequences of OTH:

Separation Authority (date):                       COMMANDING OFFICER, NAVAL AIR STATION, PENSACOLA                                                              ( 20030320 )
         Reason for Discharge directed:            OTH IN LIEU OF COURT-MARTIAL
         Characterization directed:
Date Applicant Discharged :                         20030402

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) Command Sergean's Major Excellence Award from Missouri Army National Guard

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 (formerly 3630650), 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 IV , Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 .

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 | ND0700278

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