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NAVY | DRB | 2009_Navy | ND0900889
Original file (ND0900889.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20090304
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)        20000519 - 20000525     Active:  

Period of Service Under Review:
Date of Enlistment: 20000526     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030612      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.67
Awards and Decorations ( per DD 214):     

Period of UA : DD214: 20000920 - 20001127, 20010206 - 20010227, 20020108 - 20030523, Unable to determined when UA commenced - 20030612

DISCHARGED IN ABSENTIA

 NJP :

- 20010406 :       Article 86 ( UA 20010206-20010227, 2 1 days) (per OIC ltr 1600 Ser OIC/DIA of 23 May 03)
         Awarded : Susp ended:

- 20010521 :       Article 86 ( UA duration unknown) (per OIC ltr 1600 Ser OIC/DIA of 23 May 03)
         Awarded : Susp ended:
S CM :

- 200 01205 :       Art icle 86 (UA 20000913-20001127 , 75 DAYS)
         Article 87 (Missing movement) , 2 specifications
         Article 92 (Failure to obey lawful order , missed restricted muster )
         Sentence :

SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

        
TL -20000920 To 20001127, 20010206 To 20010227, 20020108 To 20030523, 20030???? To 20030612 (last period of lost time could not be verified).       ”
         The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.

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 Representat ion :    From Congress m ember :
Oth er Documentation :


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

Applicant’s Issues

 1. Seeking to become a police officer.
2. He left for honorable purpose s and was not aware the outcome could be an Other Than Honorable discharge (OTH) .

Decision

Date: 20 0 9 0702             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. 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 reflects he was awarded two NJPs for o f the Uniform Code of Military Justice (UCMJ): Article 8 6 (UA – 2 specifications ), and one for of the UCMJ: Article 86 ( UA 75 days) , Article 87 (Missing ship’s movement – 2 specifications), and Article 92 (Failure to obey a lawful order –restricted muster) . Per the Applicant’s DD Form 214, t he Applicant incurred lost time for the period of 08 January 2002 until 23 Ma y 200 3 (500 days) and another period of UA (unable to determine date UA commenced) that ended 12 June 2003 . During th e latter period of absence , the Applicant was mailed a P roposed Administrative Separation In Absentia for Serious Misconduct - UA and an Administrative Separation Processing Notice per the Officer in Charge’s (Navy Absentee Collection and Information Center) letter of 19 May 2003. Pursuant to the Officer in Charge’s (Navy Absentee Collection and Information Center) letter of 23 May 2003, the Applicant signed the Administrative Separation Processing Notice of 19 May 2003 and waived all of his rights, including the right to consult with qualified counsel a nd to request an administrative board. Applicant was discharged in absentia with an OTH due to misconduct as directed by the Naval Personnel Command message of 02 June 2003 .
: ( Nondecisional) The Applicant is seeking to become a police officer. 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 , regarding .

: (Decisional) ( ) . In seeking an upgrade to General (Under Honorable Conditions) t he Applicant contends h e left [the Navy] for honorable purposes and upon receiving the discharge package he was not made aware that the outcome of the discharge would be an OTH if he chose to sign the papers. There is no evidence in the record nor provided by the Applicant to support the contention he left [the N avy ] for honorable purposes . Furthermore, the Applicant did not provide any evidence to corroborate his personal statement regarding him being UA because he provid ed assistance to a victim of robbery and murder, was detained by authorities in New York as a suspect of murder and subsequently serve d as a witness for the Assist ant District Attorney o f New York . The record of evidence indicate s the Applicant was discharge d in his absence after being UA on at least 4 different occasions for a total of approximately 6 10 days . Based on the seriousness and frequency of the offenses committed , the duration of the Applicant’s UAs, and the lack of evidence to support the Applicant’s contention the Board determined an upgrade is not appropriate .

The NDRB has also determined the Applicant’s contention that he was not made aware that the outcome of his discharge
would be an OTH if he signed the papers to be without merit based on the evidence of record which reflects he signed the acknowledg ment of receipt of the notice of administrative separation and waived all of his rights, including the right to consult with counsel . If the Applicant had elected to exercise his right to consult with counsel he would have been afforded an opportunity to meet with counsel and obtain information regarding his administrative separation and the consequences of an OTH discharge. Accordingly, the NDRB has concluded the command properly notified the Applicant of his rights and provided him an opportunity to seek counsel prior to being administratively separated and t h e Applicant’ s lack of knowledge regarding the consequences an OTH was due to his own action and not that of his command.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
The Applicant remains eligible for a personal appearance hearing until fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 (Unauthorized absence s over 30 days ) and Article 107 (False official statement ).



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are vetera ns organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U .S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB . 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 d ischarge 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving n aval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate s (if applicable); character witness statements; 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 companies, or other financial institutions; attendance or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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