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NAVY | DRB | 2010_Navy | ND1001167
Original file (ND1001167.rtf) Auto-classification: Denied

ex-FCSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100407
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)        20000210 - 20000905     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000906     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060504      Highest Rank/Rate: FC 3
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA : UA: 20050516 - 20050601 ( 6 days ) ; 20050906 - 20060108 ( 124 days ) ; 20060109 - 20060326 ( 76 days )
Periods of Confinement: 20050617 - 20050706 (19 days)

NJP : [Extracted from CO’s letter dtd 20060430]

- 20040225 :      Article (Failure to go to appointed place of duty )
         Awarded: Suspended: [ X 6 months]

- 20040407 :       Article (Drunken or reckless operation of veh icle, aircraft, of vessel (DUI))
         Awarded : Susp ended: [ x 6 months]

S CM : [Extracted from CO’s letter dtd 20060430]

- 20050617 :       Art icle (Unauthorized absence), 4 specifications
         Article 112 (Drunk on duty )
         Sentence : , , (20050617-20050706 , 19 days served )

- 20060412 :       Art icle (Unauthorized absence), 4 specifications
         Sentence : , , 60 days

SPCM:    C C :

Retention Warning Counseling :

- 20010801 :       For violation of UCMJ, Article 134, W earing unauthorized devices.

- 20040225 :      For Commanding Officer’s NJP of 20040225 for violation of the UCMJ, Article 86, Absent without leave.



Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT (AWOL) ”
“ 20050516-20050601; 20 05 0617-20050706; 20050906-20060108; 20060109-20060326 ”

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 11, effective 26 April 2005 until 11 June 2008, 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 (more than 30 days), Article 111, Article 112 .



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

Applicant’s Issues

 1.       Nondecisional issues: T he Applicant seeks an upgrade in the characterization of service at discharge in order to access Department of Veterans Affairs (VA) benefits .

2.       Decisional issues : T he Applicant contends that family medical concerns contributed to his misconduct and, as such, warrants consideration as mitigation for an upgrade in the characterization of his service at discharge.

Decision

Date: 20 1 1 0609    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. 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 Applicant’s record of service reflects entry into the military without waiver at age 17 on a 4 year contract with a 24 month extension due to entry level training requirements . He enlisted with a guarantee for Advanced Electronics Computer field training program . Throughout his enlistment period, the Applicant received two NAVPERS 1070/613 retention-counseling warnings. The Applicant’s period of enlistment also include d two nonjudicial punishments for violation s of the Uniform Code of Military Justice (UCMJ) : Article 86 (Absent without leave - failure to go to appointed place of duty) and Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel). In addition, the Applicant’s service record further contains two summary courts martial for violations of the UCMJ: specifically, 8 separate specification s of violating Article 86 (Absence without leave) and violation of Article 134 (Restriction breaking) . Two of the unauthorized absences included a total period of 201 days of absence from his unit without a uthority.

On 06 September 2005, the Applicant absented himself from his unit, without proper authority, and did so remain absent for 124 days. After the initial 30 days of absence, the Applicant was formally declared a deserter from the Armed Forces; a DD Form-553 Deserter/Absentee Wanted by the Armed Forces was subsequently issued to all Federal, State, and Local Law Enforcement Agencies seeking his apprehension and return to military custody. On 05 January 2006, civil authorities apprehended the Applicant and returned him t o military custody. On 09 January 2006, the Applicant again absented himself from his unit without authority for 76 days; the Applicant surrendered himself to military authorities on 26 March 2006.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 12 April 2006 . The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense - AWOL) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) and Misconduct (Pattern of Misconduct) in accordance with Article 1910-140 . The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was an Under Other Than Honorable Conditions characterization of his service. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged - in writing - that he understood that the least favorable characterization of service at discharge was Under Other Than Honorable Conditions. He was advised that he had the right to consult with qualified legal counsel; however, he chose to not exercise that right. Additionally, the Applicant elected to waive his right to request an administrative hearing board or to submit written matters to the Separation Authority for consideration in his case. On 02 May 2006 , the Separation Authority approved the discharge action and designated the primary basis for separation as MISCONDUCT ( AWOL ). On 04 May 2006 , the Applicant was discharged with a n Under Other Than Honorable Conditions characterization and was further advised that he was not recommended for reenlistment or reentry.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) so that he may be eligible to to access Department of Veterans Affairs (VA) benefits. There is no requirement, or law, that grants re-characterization solely on the issue of gaining eligibility for VA benefits (medical or educational) ; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. 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 not authorized to change a reentry code. The Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form-149. When requesting this change, the Applicant should provide as much documentation as possible regarding the reason a change is warranted. The BCNR’s address is 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

( Decisional Issue) ( ) . The Applicant contends that family medical concerns contributed to his misconduct and, as such, warrants consideration as mitigation for an upgrade in the characterization of his service at discharge. In accordance with Article 1910-142 of the M ILPERSMAN , service members may be separated based on the commission of a serious military 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 for the same or closely related offense. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service i n order to maintain good order and discipline. The Applicant’s violation of Articles 86 of the UCMJ - in excess of 124 days, terminated by apprehension and 76 days, terminated by surrender - warranted punitive discharge and confinement for up to one and a half years, if adjudicated at trial by special or general court martial. Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the M ILPERSMAN for separation based on the commission of a serious offense as a basis for discharge. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. Relief based on propriety, denied.

The Applicant contends his disciplinary problems were the result of stress caused by family medical problems. The Applicant contends the characterization of his discharge should be upgraded because he suffered many setbacks due to personal problems related to the illness and possible death of his Grandmother. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment. The Applicant made no requests for hardship discharge or for humanitarian transfer to the local area to assist with family care. The Applicant’s only attempt to reach out for assistance appears based on his statement, to have been a counseling with the ship’s Chaplain. The NDRB determined the Applicant’s personal problems were not a mitigating factor to his misconduct that would warrant relief.

Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The NDRB found the characterization of the Applicant ’ s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the applicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted. Therefore, the character of the discharge and the reason for discharge shall not change. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain (AWOL) . 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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