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NAVY | DRB | 2010_Navy | ND1001247
Original file (ND1001247.rtf) Auto-classification: Denied

ex-BTFN, USN
Current Discharge and Applicant’s Request
Application Received: 20100423
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge : M ILPERSMAN 3630600 [ MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE]
Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19911127 - 19920805     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19920806     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960305      Highest Rank/Rate: BT3
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 86
Evaluation M arks:         Performance: 3.7 ( 6 )      Behavior: 3.7 ( 6 )        OTA: 3.73

Awards and Decorations ( per DD 214):      , , ,

Period of C ONF :

NJP :
- 19930811 :       Article (Unauthorized absence from 1800, 19930808 to 0720, 19930809)
         Awarded : Susp ended:

- 19960112 :       Article (Unauthorized absence from 19951113-19951213, 30 days)
         Awarded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling : None found in record.

Administrative Corrections to the Applicant’s DD 214

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

          “ 1995 NOV 13-1995 DEC 13 ”
        
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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 (Absence without leave; more than 30 days) .


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

Applicant’s Issues

 Decisional issues : The Applicant contends that he was improperly separated; he asserts that he was being separated for psychological issues (Personality Disorder), not disciplinary issues. He further contends that his characterization of service at discharge was inequitable in that his service was honorable and is evidenced by his performance evaluation scores.

Decision

Date: 20 1 1 0628            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 disc harge met the pertinent standards of equity and propriety.

The Applicant’s record of service reflects entry into the military at age 17 on a 4 - year contract with a 24 - month extension due to entry level training requirements. Throughout his enlistment period, the Applicant did not receive any NAVPERS 1070/613 retention-counseling warnings. However, t he Applicant’s period of enlistment does include two nonjudicial punishments for violation of Article 86 of the Uniform Code of Military Justice (UCMJ): Absent without leave - absent from unit without authority for 1 day and for absenting himself from his unit, without authority, and remaining so absent in excess of 30 days.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation - in writing. The Applicant was notified of a dual basis for the proposed separation : MISCONDUCT (Commission of a Serious Offense - AWOL) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) and Convenience of the Government - Personality Disorder in accordance with Article 1910-1 22 . The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was Under Other Than Honorable Conditions. The Applicant acknowledged - i n writing - that he understood the notification and affirmed his election of rights; he elected to consult with qualified legal counsel. Additionally, the Applicant elected to waive his right to challenge the proposed discharge action and did not request an administrative hearing board and did not submit written matters to the Separation Authority for consideration in his case . H aving determined that the evidence of record supported both bas e s for discharge and that the characterization of service, as recommended, was warranted, the Separation Authority approved the discharge action and designated the primary basis for separation as MISCONDUCT (Commission of a Serious Offense - AWOL) pursuant to Article 1910-142 of the MILPERSMAN. On 0 5 March 1996 , the Applicant was discharged with an Under Other Than Honorable Conditions characterization of his service and was further advised that he was not recommended for reenlistment or reentry and was assigned an RE-4 reentry code on his DD Form 214.

(Decisional Issue) ( ) . The Applicant contends that he was improperly separated; he asserts that he was being separated for psychological issues (Personality Disorder), not disciplinary issues. He further contends that his characterization of service at discharge was inequitable in that his service was honorable as evidenced by his performance evaluation scores. The MILPERSMAN directs that when proposing separation of a service member, the Commander is to identify all applicable bas e s for separation. Accordingly, the Applicant was notified of separation proceedings pursuant to both Convenience of the Government (Personality Disorder) and Misconduct (Commission of a Serious Offense - AWOL). Article 1910-122 of the MILPERSMAN (Personality Disorder) specifies that separation for personality disorder is not appropriate, nor should it be pursued, when separation is warranted on the basis of unsatisfactory performance or misconduct. In such circumstances, the member should not be separated under this paragraph, regardless of the existence of a personality disorder. As such, the Commanding Officer properly notified the Applicant and the Separation

Authority properly discharged the Applicant for his misconduct of record - absenting himself from his unit, and remaining so absent, without authority, in excess of 30 days. In accordance with Article 1910-142 of the MILPERSMAN, 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. The Applicant’s violation of Article 86 of the UCMJ - unauthorized absence in excess of 30 days - warrants a punitive discharge and confinement for up to one year, 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 MILPERSMAN for separation based on Misconduct (C ommission of a S erious O ffense - AWOL) 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 is denied.

The Applicant contends that his characterization of service at discharge was inequitable in that his service was honorable as evidenced by his performance evaluation scores. The Applicant’s record of service does reflect very positive performance evaluation scores (a 3.7/3.7 average over 6 evaluations). However, certain serious offenses warrant separation from the service in order to maintain proper order and discipline; violation of Article 86 - in excess of 30 days - is one such offense. This usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge , but instead, opted for the more lenient administrative discharge. 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, C ommanders and S eparation A uthorities are tasked to ensure that those 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 probl ems during their enlistment.

A service member’s characterization of service is recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However, a n 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 offenses , coupled with the fact that the Applicant absented himself from his command only 22 days after arriving , the NDRB determined the Applicant’s separation was warranted . Moreover, t he NDRB determined that the Applicant’s record of service documented conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of a service member. As such, t he 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 A pplicant’s service at discharge. Therefore, the character of the discharge and the reason f or discharge shall not change.

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 . Due to 15 years elapsing since the date of discharge, the Applicant is no longer eligible for discharge review by the NDRB. The Applicant is directed to the Board for Correction of Naval Records for any further issues relating to his discharge.





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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