Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000157

Original file (ND1000157.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20091008

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)        19980617 - 19980726     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980727     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990309      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 69
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA : 19981116-19981213 ( 28 days ) ; 19981217-19990107 ( 22 days ) ; 19990202 ( 1 day ) ;
199 9 0222-19990309 (15 days )

Periods of CONF : N one found in record / Applicant was d ischarged in A bsentia .

NJP :     S CM :    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:

         “ 98NOV16-98DEC13, 98DEC17-99JAN07, 99FEB02, 9 9 FEB22-99MAR09 ”

The NDRB will recommend to the Commander, 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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 10 July 2000,
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 . 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 .

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

Applicant’s Issues

1.        Non - decisional issues : The Applicant seeks an upgrade to her characterization of service at discharge in order to re-enlist. Additionally, the Applicant is seeking a change in her re-enlistment code from RE-4 to RE-2.

2.       Decisional issues : The Applicant did not identify any decisional issues regarding propriety or equity of discharge for the NDRB’s consideration .

Decision

Date : 20 10 1209             Location: Washington D.C .        R epresentation :

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 NDRB 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 did not identify an y decisional issues for the NDRB’s consideration and provided no additional documentation for the NDRB’s consideration n or to rebut the NDRB’s presumption of regularity in governmental affairs. The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings. However, t he Applicant’s service record reflects four periods of unauthorized absence in violation of Article 86 (Absent without leave) of the Uniform C ode of Military Justice (UCMJ) .

The Applicant’s military record does not contain a copy of the separation proceedings. The Board presumed regularity in the conduct of governmental affairs based on the type of discharge that was issued and the time lost as reflected in the Applicant’s service record. In order to warrant separation in lieu of trial by court martial , the Applicant must request separation - in writing - for the good of the service to escape charges that h ave been preferred against the A pplicant and referred to trial by a Special Court-Martial or above . Th e request for separation contain s certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant must clearly affirm that h er rights were explained to h er thoroughly - to include h er right to consult with qualified counsel. Furthermore, the Applicant must admit h er guilt to the charges preferred against h er and must further certify that s he has a complete understanding of the negative consequences of h er actions , the narrative reason for h er separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions. The respondent acknowledged that i f discharged with an OTH, it might deprive her of virtually all veterans' benefits and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received may have a bearing .

The Applicant’s service record reflects completion of naval recruit training and assignment to her “A” school. Upon transfer to her school, the Applicant began a string of back-to-back unauthorized absences for 28 days, 22 days, 1 day, and 16 days. The Applicant’s command determined that her conduct was detrimental to the good order and discipline of the service and determined that the misconduct warranted punitive action via trial by court - martial. The Applicant requested administrative separation in lieu of trial by court martial (SILT). While processing the SILT request, the Applicant again absented herself without authority from her command for 16 days. The command approved the request for administrative separation in lieu of trial by court - martial , and the Applicant was discharged under other than honorable conditions in absentia. The Applicant surrendered herself to her command the day her discharge was finalized; she was subsequently released to execute her discharge that same day.

: (Non-Decisional). The Applicant seeks an upgrade to her characterization of service at discharge in order to re-enlist. Additionally, the Applicant is seeking a change in her re-enlistment code from RE-4 to RE-2 . 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter. The Applicant may petition the BCNR using Form DD - 149. When requesting this change, the Applicant should provide as much documentation regarding her contention as possible. The BCNR’s address is : Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm . As such, t he NDRB is not authorized to change the reentry code as requested by the Applicant; no relief warranted.

: (Decisional) ( ) . The Applicant did not identify any decisional issues regarding propriety or equity of discharge for the NDRB’s consideration. However, t he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package in the Applicant’s service record. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er issue s . The Applicant was discharged in absentia due to absenting herself from her appointed place of duty without authority. The Applicant’s service record reflects four periods of unauthorized absence while undergoing initial military occupational skills training as an enlisted member of the U.S. Navy. Given the serious nature of her misconduct and the requirement to maintain good order and discipline of the military service, her command opted to pursue punitive disciplinary action with regards to the Applicant ’s willful and chronic misconduct . The Applicant was separated properly from the naval service in accordance with chapter 1910-106 and 1910-230 of the Naval Military Personnel Manual (MILPERSMAN ); accordingly, relief based on propriety is not warranted.

Characterization of service at discharge is based on recognition of a S ailor’s performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions . An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, does reflect a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. A n upgrade would be inappropriate. Accordingly, relief is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall 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 Additional Reviews and Post-Service Conduct .

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 veterans organizations such as the American Legion and the Disabled American 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 their 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 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 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 naval 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 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 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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NAVY | DRB | 2010_Navy | ND1000157

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