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NAVY | DRB | 2008_Navy | ND0801136
Original file (ND0801136.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20080501
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19990222 - 19990323              Active:

Period of Service Under Review:
Date of Enlistment: 19990324      Period of E nlistment : Years Extension          Date of Discharge: 20020604
Length of Service : Yrs M on ths 24 D a ys   Education Level:         Age at Enlistment:       AFQT: 37
Highest Rank /Rate : AN     Evaluation M arks: Performance: 3.5 ( 2 )    Behavior: 3.5 ( 2 )         OTA: 3.41
Awards and Decorations ( per DD 214): NAVY”E ” , NDSM

Periods of UA : 20010112-20010114 (2 Days), 20010620-20010718 (27 Days) , 20010822-20020507 (258 Days , per DD 214 ).

NJPs :    

S CMs :   

SPCMs:  

C C :      

Retention Warnings: .

Types of Documents Submitted/reviewed

 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 Representat ion :              From Member of Congress:
Other Documentation (Describe) :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until
21 August 2002, 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 (more than 30 days) .


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

Applicant’s Issues

 1. Youth and i mmaturity.
2. Po st service conduct.
Decision

Date : 20 08 0911             Location: Washington D.C .        R epresentation :

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

 Issue 1: (Equity) RELIEF NOT WARRANTED. The Applicant contends his mitigates his misconduct. While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions due to youth or im mat u r ity . When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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.

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’s record shows he violated Article 86 (UA , more than 30 days) of the U niform C ode of M ilitary J ustice (UCMJ) . Violations of Article 86 are punishable by a punitive discharge and up to one year imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial . The Applicant requested a discharge for the good of the service to escape trial by court-martial. In the request , the Applicant noted his rights were thoroughly explained to him and he waived his right to consult counsel . Furthermore, the Applicant admitted guilt to the charges preferred against him. He further certified a complete understanding of the negative consequences of his actions and that the characterization of service could be under other than honorable conditions. The command did not pursue a punitive discharge but opted instead for the separation in lieu of a court-martial. The Board determined an upgrade was not warranted.

Issue 2: (Equity) RELIEF NOT WARRANTED. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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 such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of serv ice under review, is considered during Board reviews. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.

The Applicant provided a personal statement and as evidence of post-service accomplishments. T o warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined based on the lack of documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the limited time served and the seriousness of the UCMJ violations involved.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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 or is referred to a court martial 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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