Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800099

Original file (ND0800099.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20071016
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (bad conduct discharge)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)     19960625 - 19970615              Active:
Period of Service Under Review:
Date of Enlistment: 19970616      Period of enlistment : Years Extension Date of Discharge: 20040728
Length of Service: Yrs Mths 14 D ys     Education Level:         Age at Enlistment:       AFQT: 55
Highest Rank/Rate: AN     Evaluation marks: Performance: N/A        Behavior: N/A    OTA: N/A
Awards and Decorations (per DD 214): Rifle BER

Periods of UA/CONF: 19980803-19980805 (2 days), 19981030-19990216 (109 days), 19990408-19990915 (161 days)

SCMs:
         19990305 : Art(s) 86 (unauthorized absence); 87 (missing movement) .
Sentence - RESTR FOR 60 DAYS .

SPCMs:
         19991022 : Art(s) 86, 87 . Sentence - BCD; Conf for75 days, FOP.

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

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

Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)

Pending results of hearing .

NDRB Documentary Review Conducted (date):        20070830
NDRB Documentary Review Docket Number:   ND07-00198
NDRB Documentary Review Findings:                 No change warranted

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Request the Board’s relief with an up-grade of his characterization of service based on clemency.

Decision

Date: 2008 0529 Location: Washington D.C R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT-MARTIAL .

Discussion
Issue 1 ( ) The Applicant request the Board’s relief with an up-grade of his characterization of service based on clemency. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, 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.

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. The Applicant claims he was unable to obtain timely medical treatment for what he believed to be a potentially life threatening mass discovered in his lung below his ribs. The Applicant claims he made the decision to enter into an unauthorized absence (UA) status when he was told he would not be able to have elective surgery to remove the mass on a scheduled date due to the command ’ s deployment schedule. The Board noted the Applicant was seen by a competent military medical authority and was diagnosed with having a lesion posterior aspect on the right 9 ^th rib most consistent with Fibrous Dysplasia. It was also noted in the diagnosis the Applicant had no active heart or lung disease. The corrective surgery was identified by the military doctors as being elective in nature.

The Applicant presented as mitigating evidence the fact his mother had passed away from lung cancer six months after having been diagnosed with growths on her lung. The command ’ s deployment schedule would have meant he would wait almost six months for corrective action to occur; given the circumstances surrounding his mother ’ s death he felt this was unacceptable. The Applicant entered into an Unauthorized Absence status, which resulted in him being placed in a deserter status, to pursue medical treatment, which he did not obtain. He returned to the Navy after discussing his situation with a Reserve Naval Chaplain who convinced him returning would be the right thing to do and to obtain medical attention: 2-weeks after his surgery he again departed without authorization and entered into a deserter status.

After a thorough review of the Applicants record, issues submitted, and post service accomplishments, the Board determined the discharge awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 (more than 30 days), 87 (missing movement).

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 | 2008_Navy | ND0800099

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