Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700830

Original file (ND0700830.rtf) Auto-classification: Denied

ex-OSSR, USN
ND07-00830

Current Discharge and Applicant’s Request

Application Received: 20070605 Characterization Received: UNDER OTHER THAN HONORABLE CONDITIONS

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

Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:      1. Employment/Reenlistment
                           2. Actions were honorable, went AWOL to provide for family, surrendered not apprehended.

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 071220             Location: Washington D.C         R epresentation :

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 ( ): In reviewing discharges the Board presumes regularity in the conduct of government al affairs , unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence . With regard to impropriety or inequity t here is no evidence in the record, nor has the Applicant produ ced any evidence to support his request for an upgrade in the characterization of his service . The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial. In this request the Applicant would have noted that his rights were thoroughly explained to him and that he received counsel or waived his right to consult counsel . Additionally, the Applicant must have admitted guilt to the chargers preferred against him. Based on the Applicant’s letter to the Board it is presumed that these charges would have been violation of UCMJ Article 85 (desertion). Finally the Applicant would have certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. Violations of UCMJ Article 85 carry a maximum penalty of a Dishonorable Discharge and up to life of imprisonment if adjudicated by a court martial . In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19991109 - 20000828
Period of Service Under Review:
Date of Enlistment: 20000829               Years Contracted : 4 ;               Date of Discharge: 20020320
Length of Service: 00 Yrs 06 Mths 08 D ys         Lost Time: Days UA: Unable to accurately determine
Education Level: 12       Age at Enlistment: 18     AFQT: 45          Highest Rank/Rate: OSSR
Evaluation marks (# of occasions):       Performance: NA          Behavior: 45               OTA: 45
Awards and Decorations (per DD 214): NONE

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

20010129:        Applicant to unauthorized absence.

20010206:        Applicant from unauthorized absence.

20020320:        Applicant discharged in lieu of trial by court-martial with a service characterization of under other than honorable conditions.

Discharge Process

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:
                  BCD/DD authorized for offense(s)
         Acknowledged Consequences of OTH:
         Type of Characterization Requested:

Commanding Officer Recommendation (date):        NOT FOUND IN RECORD
Separation Authority (date):                       NOT FOUND IN RECORD
         Reason for Discharge directed:
         Characterization directed:
Date Applicant Discharged :                         20020320

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), Change 29, effective 11 Jul 2000 until 21 Aug 2002, 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 85 (desertion) .

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, 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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NAVY | DRB | 2007_Navy | ND0700830

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