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NAVY | DRB | 2007_Navy | ND0700786
Original file (ND0700786.rtf) Auto-classification: Denied
ex-AN, USN
ND07-00786
Current Discharge and Applicant’s Request
Application Received: 20070522   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. Medical Benefits
                           2. Employment Opportunities
                           3. Family issues were the cause of his misconduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall INLIEU OF TRIAL BY COURT-MARTIAL .

Date: 20 080131             Location: Washington D.C          R epresentation :

Discussion

 Issue s 1 - 2 : 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 3: ( ). The Applicant contends that the family issues that he was dealing with at the time he was in the Navy resulted in his misconduct. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service , was marred by an unauthorized absence period of 91days and a pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ) Article 86 [Unauthorized absence (more than 30 days)] and Article 87 (Missing ship’s movement) . Violation of UCMJ Article s 8 6 and 87 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20020827 - 20021014              Active:         
Period of Service Under Review:
 Date of Enlistment: 20021015      Years Contracted : ; Extension:   Date of Discharge: 20050207
Length of Service : 02 Yrs 00 Mths 13 D ys          Lost Time : Days UA: 99 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 33          Highest Rank /Rate :
Evaluation marks (# of occasions):       Performance: 3.0 ( 1 )       Behavior: 3.0 ( 1 )          OTA: 3.0
Awards and Decorations ( per DD 214): NDSM, GWOTEM, SSDR
Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20031018:        Applicant to UA

20031020:        Applicant from UA

 200406 10 :        NJP -- Viol UCMJ Art. 86 – Unauthorized Absence (3 specs – 8 days) , Art. 87 - Missing ships movement .
          Awarded - FOP ($200.00) for (1 months); RIR (E-2) Susp for 6 months; Restr for (30 days); Extra duties (30 days).

20040610:        Retention Warning for NJP.
20041010:        Applicant to UA

20041013:        Applicant misses ships movement

20041108:        Applicant declared a deserter

2005011:         Applicant from UA
Discharge Process

 Charge(s) Preferred: date                                    NOT FOUND IN RECORD
Charge(s) and Specification(s):
         Article 86 :      
         Article 87      

Date Applicant Submitted SILT request:            NOT FOUND IN RECORD
         Consulted with or Waived Counsel:                
         Acknowledged Understanding Elements:    
         Acknowledged Guilt to:                     Article(s)
                  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):                            
         Reason for Discharge directed:           
         Characterization directed:                        
Date Applicant Discharged :                          20050207



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 Aug 2002 until 30 May 2005, 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 . 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 .


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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