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NAVY | DRB | 2010_Navy | ND1001119
Original file (ND1001119.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20100330
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)        19990115 - 19990222     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990223     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20001005      Highest Rank/Rate: AR
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of Unauthorized Absence: 19990805 – 2000092 0 ( 412 days)

NJP :              S CM :             CC:      Retention Warning Counseling : NFIR

SPCM: 20000921 – charges referred and withdrawn upon agreement of administrative separation in lieu of tri a l by court martial request; s pecific charge referred was violation of Article 86 - absent without leave (specifically, did absent herself from her appointed place of duty on 19990805, without authority, and did remain so absent until surrendering herself to mi litary authority on 20000920).

Administrative Corrections to the Applicant’s DD 214

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

          “ 1 Year 7 Months 13 Days ”

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 29, effective 11 July 2000 until
21 August 2002, 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 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

 Decisional issues : (1) The Applicant contends that her discharge characterization was inequitable given the mitigating factors related to her misconduct and, as such, warrants consideration and an upgrade to Honorable. (2) The Applicant contends that she did no t understand what she was signing when she accepted separation in lieu of trial by court martial.

Decision

Date : 20 1 1 0804             Location: Washington D.C .        R epresentation :

By a vote of the Characteriza tion 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 two decisional issues for the NDRB’s consideration; in addition, 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 a personal stateme nt for the NDRB’s consideration.

The Applicant entered military service at age 20 without any waivers to enlistment or induction standards on a guarantee of training in the Seafarer to Airman Apprenticeship program. The Applicant’s official record of service included no NAVPERS 1070/613 retention-counseling warnings and no nonjudicial or judicial punishments for violations of the Uniform Code of Military Justice (UCMJ). On 05 August 1999, the Applicant absented herself from her unit (USS ESSEX) and did remain so absent until 20 September 2000. The Applicant was declared a deserter by the command after 30 days of unauthorized absence; she was dropped administratively from the unit rolls and a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) warrant was issued to Federal, State, and local law enforcement authorities for her arrest and return to military custody. T he Applicant surrendered h er self to military authority on 20 September 2000 after being apprehended by civilian law enforcement authorities , thus ending h er desertion status and returning her to duty with the Transient Personnel Unit, Naval Training Center, Great Lakes, IL. 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 violation of the UCMJ was serious in nature and warranted punitive, vice administrative, action. On 2 1 September 2000 , the Applicant was placed in pre-trial confinement; the c ommand preferred formal charges against the Applicant and subsequently referred th ose charges for trial by special court-martial. On that same date, the Applicant requested administrative separation for the good of the service to escape the punitive action of a trial by court-martial. She waived h er right to consult with counsel and stated that s he understood the elements of the offenses charged against h er . Furthermore, the Applicant admitted, by initialing and signing a witnessed document, that s he was guilty of the offenses as stated and that s he understood that if discharged Under Other Than Honorable Conditions, it might deprive h er of virtually all veterans benefits. The Applicant’s request for administrative separation in lieu of trial by court-martial was approved on 25 September 200 0 and s he was discharged effective 0 5 October 2000 .

 (Decisional Issue) ( ) – PARTIAL . The Applicant contends that her discharge characterization was inequitable given the mitigating factors related to her misconduct and, as such, warrants consideration and an upgrade to Honorable. Additionally, the Applicant contends that she did not understand what she was signing when she accepted separation in lieu of trial by court - martial. 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. The evidence of record documents that the Applicant did violate the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for h er conduct or that s he should not be held

accountable for h er actions. However, the evidence of record also includes extenuating and mitigating factors of being sexually assaulted by a fellow shipmate, r esult ing in an unplanned pregnancy and emotional distress . Given the unique issues of this individual case, coupled with the documentation in the official service record, the NDRB determined that the discharge was proper, but not equitable. While the NDRB does not condone the course of action the Applicant chose to take in addressing h er medical and mental health issues, the NDRB determined the awarded discharge characterization of service to be excessively harsh , given the mitigation - which was not presented to the Separation Authority for consideration at the time of discharge . As such, the NDRB determined the proper characterization of service warranted was General (Under Hono rable Conditions). Full relief to Honorable was not granted due to the extensive period of unauthorized absence. Partial relief warranted.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall , but 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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