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NAVY | DRB | 2008_Navy | ND0801394
Original file (ND0801394.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20080620
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: USNR (DEP) 19990729 - 20000117                 Active:

Period of Service Under Review:
 Date of Enlistment: 20000118      Period of Enlistment : Years Extension         Date of Discharge: 20011217
Length of Service: Year Months 00 D ays       Education Level:         Age at Enlistment:     AFQT: 43
Highest Rank/Rate: E-4   Evaluation Marks: Performance:   3.0 ( 1 )  Behavior: 3.0 ( 1 )        OTA: 3.0
Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA: 20010814 – 20011113 (91 DAYS)

 NJP: SCM: SPCM: CC: Retention Warnings:

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/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 Congress member:

Other Documentation (Describe):
                  - Character reference from PN1 R. L. C.
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.




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

Applicant’s Issues

 1. Applicant would like to serve his country again.
2. Applicant claims this was an isolated incident in 20 months of service.
 3. His command did not assist him.

Decision

Date: 2008 1023             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SEPARATION IN LIEU OF COURT MARTIAL.)
Discussion

 : 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, specifically the paragraph concerning s , regarding .

: ( ) . The Applicant states his misconduct was an isolated incident and based on his reaction to his wife’s poor judgment. He had honorable service up until the time he took the unauthorized leave of absence. 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. For the edification of the Applicant, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s record of service was marred by his 91day period of UA, which is violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA). A 91day UA for a sailor of the Applicant’s rank and time in service is considered a serious offense and cannot be tolerated by any member of the US Navy. This offense is punishable by a punitive discharge and up to one year imprisonment if adjudged and awarded as part of the sentence upon conviction by a special or general court-martial. The Applicant requested 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 certified a complete understanding of the negative consequences of his actions and that characterization of service could be “Under Other Than Honorable Conditions”. 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. The Board determined an upgrade would be inappropriate

Issue 3: (Equity) RELIEF NOT WARRANTED. The Applicant claims when his home life started to deteriorate, he went to his command for help. He was subsequently sent to the mental health department and prescribed medication for depression. However, this did not solve his problems at home. There is no evidence in the record, nor has the Applicant produced any evidence, to support the Applicant’s claim the command did nothing to assist him. His chain of command recommended the Applicant be seen by a mental health professional and he acted on this guidance. The Applicant does not say exactly what role he expected his command to play in resolving his personal family issues nor how his unit failed him. As stated above in Issue 2, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut this presumption. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Without additional supporting documentation, t he Board determined an upgrade would be inappropriate.

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, 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 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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