Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000963

Original file (ND1000963.rtf) Auto-classification: Denied

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20100302

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)        19990928 - 19991018     Active:

Period of Service Under Review:
Date of Current Enlistment: 19991019     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20001221      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

NJP : NFIR

S CM :

- 20001116 :       Art icle 86 (Unauthorized absence), 2 specifications
         Specification 1: 20000212-20000917 ( 218 days )
         Specification 2: 0730-1820, 20001103
         Sentence : CONF 21 days (20001116-20001202, 16 days)
SPCM:

C C :

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:          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 30, effective 30 August 2000 until
24 January 2001, 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 (in excess of 30 days).

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 characterization of service to Honorable and change in Re-enlistment Code in order to reenlist in the Armed Forces.

2.       Decisional issues: The Applicant contends that mitigating circumstances, not considered at the time of her discharge, warrant a review and necessitate a reconsideration of her characterization of service at discharge.

Decision

Date: 20 1 1 0407         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 identified one decisional issue for the NDRB’s consideration; additionally, 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 documentary evidence in support of her contentions, to include copies of police investigations and arrests, along with post - service character references and community activities for the NDRB’s consideration during the record review.

The Applicant’s record of service reflects an initial entry into the military, with waiver for enlistment standards due to depend e nts , at the age of 20 . The Applicant enlisted in the Navy with an Airman Apprenticeship Program training guarantee and reported for duty at Naval Station Great Lakes for training as scheduled . During the enlistment period, the Applicant received no NAVPERS 1070/613 retention-counseling warnings. The Applicant’s period of enlistment included no nonjudicial punishment s, but did contain a summary court - martial conviction for violation of the Uniform Code of Military Justice - Article 86 ( Absent without leave; specifically, absenting herself from her appointed place of duty, without authority, and remaining so absent for 218 days ) .

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 01 December 2000 . The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN). The Command further advised the Applicant that the least favorable characterization of service s he could receive at discharge was an Under Other Than Honorable Conditions characterization of h er service. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged - in writing - that s he understood that the least favorable characterization of service at discharge was Under Other Than Honorable Conditions. She was advised that s he had the right to consult with qualified legal counsel ; however, she chose to not exercise that right. Additionally, s he elected to waive h er right to request an administrative hearing board or to submit written matters t o the Separation Authority for consideration in h er case . On 12 December 2000 , having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted, the Separation Authority approved the discharge action and designated the basis for separation as MISCONDUCT (Commission of a Serious Offense). On 21 December 2000 , the Applicant was discharged with a n Under Other Than Honorable Conditions characterization of h er service and was further advised that s he was not recommended for reenlistment or reentry.

Nondecisional Issues - The Applicant seeks an upgrade in the characterization of h er service at discharge and a corresponding change to h er ree ntry code in order to be eligible for reenlistment in the Armed Services . The NDRB has no authority to upgrade a discharge characterization of service for the sole pur pose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. The Applicant may petition the BCNR using standard DD Form-149. When requesting a change, the Applicant should provide as much documentation regarding h er reason for change as possible. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

: (Decisional) ( ) . The Applicant contends that mitigating circumstances, not considered at the time of her discharge, warrant a review and necessitate a reconsideration of her characterization of service at discharge. 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. In accordance with the MILPERSMAN, service members may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court - martial . Furthermore, administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial pr oceedings , however, the offense must be substantiated by a preponderance of evidence. Violation of Article 86 of the UCMJ - absent without leave in excess of 30 days, not terminated by apprehension - warrants a punitive discharge and confinement for up to one year, if adjudicated at trial by special or general court - martial. As such, t he Applicant’s service record documents a n administrative finding of guilt based on the preponderance of evidence for the commission of a serious offense. The Applicant’s Commanding Officer, pursuant to that finding, recommended the Applicant ’s administrative separation from the Naval Service . Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements esta blished for separation based on Misconduct (Commission of a Serious Offense) as the basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied.

The Applicant was discharged due to a single , albeit extensive, period of unauthorized absence . However, the Applicant contends that extenuating and mitigating factors involved with her situation, not considered at the time of discharge, warrant reconsideration. The Applicant provided the NDRB with documentation in support of h er contention, to include attestations from local and county police and criminal investigators and supporting recommendations from the local Marine Corps Recruiting Office Staff Noncommissioned Officer in Charge . Based on the unique issues of this individual case , coupled with the documentation in the official service record, the NDRB determined that the discharge, though proper, was inequitable . B y a vote of 5-0 , the NDRB determined that had the extenuating and mitigating circumstance been considered at the time of discharge, the Applicant would have been retained , or at a minimum, received a higher characterization of her service. Given the action of discharge has occurred, and in consideration of the extenuating and mitigating circumstances unique to this case, the NDRB determined that the narrative reason for separation, as reflected on the Applicant’s DD Form 214 - MISCONDUCT (Commission of a Serious Offense) - is no longer proper or warranted. Since there is no other narrative reason for separation that correctly describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority. As such, relief is warranted.

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. In consideration of the unique factors of this case and the Applicant’s record of service, which contains no other misconduct or proficiency issues , the NDRB discerned an inequity in the characterization of the Applicant’s service at discharge. The NDRB determined that , in light of the extenuating and mitigating circumstances, the Applicant’s record of service was honest and faithful and did meet the standard of acceptable conduct and performance for naval personnel. The NDRB’s vote was 3-2 that an upgrade is appropriate and that relief is warranted; therefore, the character of the discharge shall change to Honorable. Relief, as requested, is awarded.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, documentary evidence, and service discharge process, the Board found the discharge was proper, but not equitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

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 | ND1000963

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