ex-SN, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090410
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) 20030611 - 20030701   Active:

Period of Service Under Review:
Date of Enlistment:  20030702     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20050204 Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:       AFQT:  44
Evaluation Marks:      Performance:  1.0 (1) Behavior:  1.0 (1)     OTA:
1.00

Awards and Decorations (per DD 214):

Periods of UA/CONF:  UA:  20040925-20041005 (10 days, surrendered);
20041010-20041014; (4 days, surrendered); 20041206-20050116 (41 days,
surrendered) CONF:

NJP:

SCM:

SPCM:       Pending for Article 86 (Unauthorized absence: 3 specifications
      totaling 55 days)
      Sentence: Applicant chose to Separate In Lieu of Trial by Court-
      Martial

CC:

Retention Warning Counseling:  NFIR

                    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:



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

                             Applicant’s Issues

1.  The Applicant wants to reenlistment in the Armed Forces.
2.  The Applicant was only 17 years old when he enlisted and could not
adapt to the Navy.
3.  The Applicant went UA to be with his girlfriend, but is now married and
has no reason to go UA.

                                  Decision

Date:  20090618        Location:  Washington D.C.  Representation:

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

                                 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 discharge if such change is warranted.  In reviewing
discharges, the Board presumes regularity in the conduct of governmental
affairs unless there is substantial credible evidence to rebut the
presumption, to include evidence submitted by the Applicant.  The
Applicant’s record of service was incomplete and the NDRB could not
determine if the Applicant ever received a NAVPERS 1070/613 (Page 13)
warning.  The NDRB did find evidence the Applicant had a pending special
court martial (SPCM), but chose to separate in lieu of trial by court-
martial for violation of Uniform Code of Military Justice Article 86
(unauthorized absence (UA), 3 specifications, which included an absence in
excess of 30 days; he surrendered after each UA).  Violation of Article 86
(UA more than 30 days) is considered a serious offense, punishable by
punitive discharge and confinement if adjudicated by a special or general
court-martial.  In the absence of a complete discharge package, the Board
presumed regularity of governmental affairs.  As such, the Board presumed
that the Applicant requested discharge to escape trial by court-martial,
that the Applicant had the elements of the offenses for which he was
charged fully explained by counsel, that the Applicant admitted guilt to
the offenses, and that the Applicant had a complete understanding of the
negative consequences of his actions.

:  The NDRB has no jurisdiction over reenlistment, reentry, or
reinstatement into the Navy, Marine Corps, or any other branch of the Armed
Forces, and 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 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.

:  ()  .  The Applicant contends his problems in the Navy can be attributed
to his youth − he was only 17 years old when he enlisted and 18 years old
when he was discharged.  While he may feel his youth was the underlying
cause of his misconduct, the record of evidence does not demonstrate the
Applicant was not responsible for his misconduct or should not be held
accountable for his actions due to youth or immaturity.  The NDRB
recognizes that many of our service members are young at the time they
enlist for service but still manage to serve honorably.  While we
understand some members may be less mature than others, the NDRB does not
view a member’s claim of immaturity to be a mitigating factor or a
sufficient reason for misconduct.

Issue 3:  ()  .  The Applicant contends he went UA to be with his
girlfriend but is now married with one child and has no reason to go UA.
For the Applicant’s edification, the NDRB is authorized to consider post-
service factors in the recharacterization of a discharge.  However, 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 in civilian
life.  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.  As noted in the NDRB’s initial correspondence to the
Applicant, documentation to help support a post-service conduct upgrade
includes, but is not limited to: a verifiable continuous employment record;
marriage and children’s birth certificates (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 at 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 previous in-service
misconduct was an aberration and not indicative of the member’s overall
character.

Besides the Applicant’s statement with his DD Form 293, he failed to
provide any additional documentation and evidence on his behalf.  Veterans
organizations such as the American Legion are willing to provide guidance
to former service members in their efforts to obtain a discharge upgrade.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, and discharge
process, the Board found   Therefore, the awarded characterization of
service shall remain Under Other Than Honorable and the narrative reason
for separation shall remain In Lieu of Trial by Court Martial.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of her discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled
Reenlistment/RE-code and Post-Service Conduct.

                          Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October
2002, effective 22 August 2002 until 30 May 2005, 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 IV, Para
403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 UCMJ Article 86 (UA more than 30
days).

                  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 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 Board for Correction of Naval Records (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 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 NDRB 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 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