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NAVY | DRB | 2010_Navy | ND1001371
Original file (ND1001371.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20100430
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)        19980729 - 19980820     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980821     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991022      Highest Rank/Rate: S A
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214):      NONE

Pre-trial Conf: 34 days [ specific dates not determinable from record ]

NJP :
- 19990308 :       Article (Unauthorized absence from 0001-0335, 19990219)
         Article (Failure to obey a lawful order by Commanding Officer)
         Awarded : Susp ended:

S CM :            CC:

SPCM:
- 19990924 :       Art icle (Unauthorized absence), 2 specifications
         Specification 1: 19990613-19990717, 34 days
         Specification 1: 19990816-19990821, 5 days
         Article 87 (Missing movement 19990618)
          Sentence : CONF 70 days

Retention Warning Counseling :
- 19990308 :       No specifics [Extracted from Commanding Officer’s letter dated 19991014]

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 18, effective 12 December 1997 until
29 March 2000, 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 (Absence greater than 30 days), Article 92, and Article 87.



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 service at discharge in order to facilitate reenlistment in the Active or Reserve Component of the U.S. Navy. The Applicant seeks an upgrade in the characterization of his service in order to access VA medical benefits for a full medical evaluation due to concerns of having received the Anthrax vaccination series.

2.       Decisional issues: The Applicant contends that his discharge action was improper because the Transient Personnel Unit discharged him vice his assigned command when he had requested to be returned to his parent command.

Decision

Date: 20 1 1 070 8            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 NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant enlisted in the United States Navy at age 21 for a four - year enlistment with a 12 - month extension under a guaranteed bonus in the Seaman Apprenticeship Program . The Applicant completed one year and one month of his five-year contractual obligation. During the Applicant ’ s period of service, he received one NAVPERS 1070/613 (Page 1 3) retention-counseling warning . The Applicant’s enlistment also contained a non-judicial punishment for violation of Article 86 (Absence without leave) and Article 92 (Failure to obey a lawful order or regulation) of the Uniform Code of Military Justice (UCMJ) . Additionally, the Applicant was convicted at trial by Special Court - Martial on 24 September 1999 for violation of the following Articles of the UCMJ :

•         Article 86 ( Absence without leave – absented himself from unit, without proper authority, absence terminated by apprehension)
•         Article 86 (Absence without leave – absent ed himself from unit, without proper authority, in excess of 30 days, absence terminated by surrender)
•         Article 87 (Missing movement of ship through neglect) .

Qualified legal counsel represented the Applicant during the trial by Special Court-Martial. In accordance with a signed pre-trial agreement (PTA), the Applicant agreed to waive any rights to an administrative discharge hearing board , elected to plead guilty to the charges as agreed upon in a trial by judge alone, and stipulated his complete understanding of the possible effects of an Under Other Than Honorable Conditions characterization of service at discharge . In consideration, the convening authority agreed to limit any adjudged period of confinement to no t more than 4 0 days . T he trial judge awarded the Applicant 7 0 days confinement, a reduction in paygrade to E- 1 , and a forfeiture of $ 633 .00 pay for a period of 2 months.

The NDRB reviewed the Applicant’s administrative separation package: W hen notified of administrative separation processing using the notification procedure, the Applicant waived his right to consult with a qualified counsel , waived his right to submit written matters to the Separation Authority , and waived his right to request that an administrative hearing board be convened. The Applicant’s election of rights was exercised in accordance with the written PTA in which the Applicant freely and knowingly entered into with the Special Court - Martial Convening Authority. Besides his DD Form 293 and personal statement , the Applicant provided no other documentation or evidence in support of his request for consideration by the NDRB.

Nondecisional Issues. The Applicant seeks an upgrade in the characterization of service at discharge in order to facilitate reenlistment in the Active or Reserve Component of the U.S. Navy and to access VA medical benefits for a full medical evaluation due to concerns of having received the Anthrax vaccination series. There is no requirement, or law, that grants re-characterization solely on the issue of seeking reenlistment or obtaining Department of Veterans Affairs (VA) medical benefits. 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. Only the B oard for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) can make changes to reenlistment codes. N either a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment ; a request for waiver may be submitted during the processing of a formal application through a recruiter . In regards to medical treatment benefits, the VA determines eligibility for post-service benefits, not the Naval Discharge Review Board. The VA conducts its own determination of eligibility based on service records and input from an A pplicant, upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance. A s such, th ese issue s do not serve to provide a foundation upon which the NDRB can grant relief.

( Decisional Issues) ( ) . The Applicant contends that his discharge action was improper because the Transient Personnel Unit discharged him vice his permanent assigned command , though he requested to be returned to his parent command.

Propriety - In accordance with the Naval Military Personnel Manual ( MILPERSMAN ) , a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation. In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated for misconduct due to t he commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense (s) would warrant a punitive discharge if adjudicated at trial by court martial . The Applicant’s violation of Articles 86 (in excess of 30 days) , 87, and 92 of the UCMJ each warrant punitive discharge and a maximum confinement of up to five years, if adjudged at trial by special or general court - martial. The Separation Authority reviewed the Command’s recommendation for separation and determined that the Applicant’s documented misconduct established the minimum requirements for discharge based on m isconduct due to the commission of a serious offense. The Separation Authority determined that separation was proper and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 22 October 1999 , the Separation Authority directed the Applicant be discharged and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment.

The Applicant contends that his discharge was improper because he was not separated by his parent command, but by the Transient Personnel Unit. In accordance with Article 1910-206 of the MILPERSMAN, when circumstances warrant, commands may transfer a member of their command under temporary duty to be processed and/or separated at another command. The evidence of record documents that the Applicant absented himself from his parent command on 13 June 1999, without authority , and did so remain absent until surrendering himself to military custody on 17 July 1999 at the Transient Personnel Unit. While in an unauthorized absence status , the Applicant missed his scheduled ship ’ s movement. On 13 July 1999, after 30 days of continuous absence, the Applicant was declared a deserter from the armed forces and was dropped administratively from the unit’s rolls. The Applicant’s service record documents 17 July 1999 as the date of return to the control of the armed forces by surrendering himself to the Transient Personnel Unit, Bremerton, Washington. The Applicant was re - joined to his unit ’s rol ls on 17 July 1999 and was subsequently transferred on 22 July 1999 - under temporary duty orders - to the Transient Personnel Unit for discharge processing. Having reviewed the facts and circumstance unique to this case, the NDRB determined that there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. As such, relief based on propriety is denied.

Equity - A service member’s characterization of service is founded on the 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. Moreover, 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. 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 Article 92 and Article 86, coupled with a trial by S pecial C ourt- M artial for violation of Article 86 ( in excess of 30 days ) and Article 87 . The violation of Articles 86 for a period of unauthorized absence in excess of 30 days , 92 , and 87 of the UCMJ are serious offenses for which a punitive discharge is authorized, if adjudged by a Special or General Court-Martial. Based on the seriousness of the offenses 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 expect ed of members of the Naval S ervice . The NDRB determined that the characterization of the Applicant ’ s discharge was equitable and that his separation from the Naval Service was consistent with others in similar circumstances . 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 Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT. 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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