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NAVY | DRB | 2007_Navy | ND0700841

Original file (ND0700841.rtf) Auto-classification: Denied

ex-SK3, USN
ND07-00841

Current Discharge and Applicant’s Request

Application Received: 20070605 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. Command did not allow time for medical treatment


Decision

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

Date: 20080306            Location: Washington D.C         R epresentation :

Discussion

Issue 1: ( ). The Applicant implies that her command did not allow her time for medical treatment resulting in her early discharge. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled her out for ridicule, discipline, or not permitting her to receive medical treatment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

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 151 days of unauthorized absence resulting in a pending trial by court martial. Sailors may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Sailor is unqualified for future military service. The Applicant, after consultation with Defense Council, voluntarily signed the request. A change of Characterization of Service w ould be inappropriate.

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: USNR (DEP)     20020420 - 20020702              Active:
Period of Service Under Review:
Date of Enlistment: 20020703      Years Contracted : ; Extension: Date of Discharge: 20051102
Length of Service: 01 Yrs 10 Mths 02 D ys         Lost Time: Days UA: 151 Days Confined:
Education Level:         Age at Enlistment:       AFQT: 61          Highest Rank/Rate: SK3
Evaluation marks (# of occasions):       Performance: 4.0 ( 1 )      Behavior: 4.0 ( 1 )                  OTA: 3.67
Awards and Decorations (per DD 214): NDSM, GWOTSM, GWOTEM

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

20040417:        Applicant to unauthorized absence at 0730.

20050915:        Applicant from unauthorized absence at 1130 (151 days/surrendered).

20051004:        No disciplinary action taken for the period of absence from 20040417 to 200050915. Administrative checkage for this period of absence.

Discharge Process

Charge(s) Preferred: NOT FOUND IN RECORD
Charge(s) and Specification(s):
         Article 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 :                         20051102

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) Letter from C_ L_, M.S., L.P.C, Clinician, State of Connecticut Hairdresser/Cosmetician License,

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, 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.

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 | ND0700841

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