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NAVY | DRB | 2010_Navy | ND1000467
Original file (ND1000467.rtf) Auto-classification: Denied

ex-STGSA, USN
Current Discharge and Applicant’s Request
Application Received: 20091127
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)        19901121 - 19910625     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19910626     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950 1 25      Highest Rank/Rate: STGSN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 2.9 ( 3 )      Behavior: 2.9 ( 3 )        OTA: 3.45
Awards and Decorations ( per DD 214):      , CGSOSR (2) , , NRSSR ,

Periods of UA /C ONF : UA: 19941101-199412 1 2 (4 1 days )
CONF:

NJP :
- 19941224 :      Article (Failure to obey lawful order)
         Awarded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:            Service 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 9, effective 22 July 1994 until 2 October 1996,
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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.        Nondecisional issues - The Applicant seeks an upgrade in the characterization of his discharge to further his prospect of enlistment in the United States Army. Additionally, the Applicant seeks what he believes is an automatic upgrade to his discharge characterization of service after waiting a one year minimum period of time and also seeks an upgrade to better his opportunities in the future.

2.       Decisional issues . (1) (Equity) The Applicant contends that his misconduct of record was an isolated incident , with no other blemishes on his record , in 43 months of honorable service ; as such, he contends that he warrants an upgrade in the characterization of his service at discharge. (2) (Propriety/Equity) The Applicant contends that if he requested separation under other than honorable conditions in lieu of trial by court martial and a possible Bad Conduct Discharge, he would not be prejudiced in the civilian job community and that he would eventually receive an automatic upgrade to his discharge characterization of service. (3) (Equity) The Applicant contends that he has maintained continued good employment with promotions and advancements due to his honest and faithful hard work and his post - service activities warrants consideration in upgrading his discharge characterization of service.

Decision

Date : 20 1 1 0211    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 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 submitted three decisional issues for the NDRB’s consideration. The 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 Applicant provided no additional documentation for consideration beyond his personal statement and a copy of his administrative separation package.

The Applicant entered military service with a waiver for pre-service drug use (marijuana) and for disorderly conduct and assault for a guarantee of training as a surface sonar tech nician . The Applicant’s official record of service included no NAVPERS 1070/613 retention-counseling warnings and one nonjudicial punishmen t for violation of the Uniform C ode of Military Justice (UCMJ); specifically, violation of Article 91 – failure to obey a lawful order or regulation. The Applicant was reduced in rank and received 45 days restriction and 45 days extra dut y assignments .

On 01 November 1994, the Applicant absented himself from his unit and did remain so until 12 December 1994. By absenting himself from his assigned place of duty, by design, the Applicant also missed his ship ’ s movement. The Applicant was declared a deserter by the command on 30 November 1994 ; the Applicant was dropped administratively from the unit rol l s and a DD-553 (Deserter/Absentee Wanted by the Armed Forces) warrant for arrest was issued. On 12 December 1994, the Applicant surrendered himself to military authority , ending his desertion status .

Based on the nature of the misconduct and the need to maintain the good order and discipline of the service, the Applicant’s command determined that the violations of the UCMJ were serious in nature and warranted punitive vice administrative action. On 13 December 1994 , the Applicant’s command preferred formal charges against the Applicant and subsequently referred the charges for trial by special court - martial. On 13 January 1995, the Applicant requested administrative separation for the good of the service to escape the punitive action of a trial by court-martial. He exercised his right to consult with counsel and stated that he understood the elements of the offenses charged against him. Furthermore, the Applicant admitted , in writing that he was guilty of the offenses charged and that he understood that if h e was discharge d Under Other Than Honorable Conditions , it might deprive him of virtually all veterans' benefits . Finally, the Applicant also acknowledged that with his discharge, he might encounter substantial prejudice in civilian life in situations where the type of service rendered or the character of discharge received may have a bearing. The Applicant’s request for administrative separation in lieu of trial by court-martial was approved , and he was discharged effective 25 January 1995 .

Issue 1: (Non-Decisional). The Applicant seeks an upgrade in the characterization of his discharge to further his prospect of enlistment in the United States Army. Additionally, the Applicant seeks what he believes is an automatic upgrade to his discharge characterization of service after waiting a one year minimum period of time and also seeks an upgrade to better his opportunities in the future.

These are either issues for which the NDRB cannot form a basis of relief for the Applicant, or ones that the NDRB does not have the authority to grant the relief for which the Applicant has petitioned. The NDRB does not upgrade discharges to former service members solely to aid them in becoming more productive members of society , to improve employment opportunities, or because a specified period of time has elapsed . Rather, the NDRB examines the propriety and the equity of an Applicant’s discharge and is authorized to change the characterization of that service or the reason for discharge if factors of equity or propriety warrant such change. The Applicant is directed to the Addendum , , Automatic Upgrades , and Post Service Conduct regarding these issues .
The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is prohibited from changing a reenlistment code. N either a less than fully honorable discharge, nor an unfavorable "RE" code are, in themselves, bars to reenlistment; a request for waiver of conditions may be submitted through a recruiter during the processing of a formal application for enlistment. Only the Board for Correction of Naval Records can make changes to reenlistment codes. The Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149 to address reenlistment code issues.

As such, these issues do not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2 : (Decisional) ( ) . The Applicant contends that his misconduct of record was an isolated incident, with no other blemishes on his record, in 43 months of honorable service; as such, he contends that he warrants an upgrade in the characterization of his service at discharge. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations also permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.

Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. There is credible evidence in the record that the Applicant violated the UCMJ and Naval Service values of honor, courage, and commitment. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s conduct during the period of service, which forms the primary basis for determining the character of his service, was marred by the awarding of a nonjudicial punishment for violation of the UCMJ, Article 91, and referral of charges to trial by court - martial for violation of Article 86. The violations of Articles 86 – in excess of 30 days – and A rticle 91 of the UCMJ are serious offenses for which a punitive discharge is authorized, if adjudged by a Special or General Court - Martial. The NDRB determined that the characterization of the Applicant's discharge was equitable and that his separation from the Navy was consistent with others in similar circumstances; an upgrade to an H onorable characterization of service at discharge would be inappropriate. Accordingly, relief , as requested , is denied.

Issue 3: (Decisional) (Propriety/ ) . The Applicant contends that if he requested separation under other than honorable conditions in lieu of trial by court martial and a possible Bad Conduct Discharge, he would not be prejudiced in the civilian job community and that he would eventually receive an automatic upgrade to his discharge characterization of service. The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standards of both equity and propriety. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in order to escape the punitive possibilities of a trial by special court-martial. He consulted with qualified counsel and was advised fully of the implications of his request. The Applicant stated – in writing – that he understood that if he was discharged under other than honorable conditions , as proposed , it might deprive him of virtually all veterans' benefits , and he c ould expect to encounter substantial prejudice in civilian life . The Applicant further acknowledged that he understood the elements of the offense for which he was charged and admitted he was guilty of violating Article 86 of the UCMJ by absenting himself from his unit without proper authorization in excess of 30 days .

The Applicant’s record of service is marred with a nonjudicial punishment and separation in lieu of trial by court - martial for absent ing himself from his duties and remain ing absent for 41 days, until surrendering himself to military custody. These actions had a direct bearing on the characterization of service received at discharge. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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.

Based on the seriousness of the offense committed, the Applicant’s length of service, and his in-service documentation, the NDRB determined that the Applicant’s deliberate and willful misconduct involved one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval service . As such, the awarded characterization of service and narrative reason for separation were warranted at the time of discharge. Relief , as requested , is denied.

Issue 4: (Decisional) ( ) . The Applicant contends that he has maintained continued good employment with promotions and advancements due to his honest and faithful hard work and his post - service activities warrants consideration in upgrading his discharge characterization of service. The NDRB is authorized to considers 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. However, there is no law or regulation that provides an unfavorable discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct does not guarantee an upgrade from an unfavorable discharge, as each discharge is reviewed by the NDRB on a case-by-case basis. The Applicant provided a personal statement of his post - service conduct. After a careful review of the Applicant's post-service statement - and taking into consideration his period of enlistment and the facts and circumstances unique to this case - the NDRB determined that the Applicant’s statements of post - service conduct alone, without sufficient documentary evidence, were not enough to form a basis of relief. As such, an upgrade to the characterization of service issued at the time of discharge is not warranted . Relief denied.

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 for a period of fifteen years from the date of 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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