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NAVY | DRB | 2010_Navy | ND1001442
Original file (ND1001442.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20100517
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)        19990720 - 20000704     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000705     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031014      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.6 ( 3 )        OTA: 2.77

Awards and Decorations ( per DD 214):     

Period of UA : 20021129 - 20030823 (2 67 days )
Lost time per DD214: 20021116 - 20021118 ( 3 days – unknown reason)
CONF: (Pre-trial) 20030826 - 20030923

NJP :

S CM :

SPCM:    Applicant was placed in pre-trial confinement from 26 Aug 2003 until 23 September 2003. Trial by Special Court Martial c harges were preferred on 15 September 2003 for violation of Article 86: Absence without leave - specifically, while on active duty, the Applicant did, without authority, absent himself from his unit (USS ENTERPRISE) and did remain so absent for 267 days. Unauthorized Absence was terminated by civilian law enforcement apprehension. On 23 September, the Convening Authority withdrew the charges after accepting the Applicant ’ s request for administrative separation in lieu of trial by court martial.

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ 02NOV16-02NOV18; 02NOV29-0 3 AUG23 ”
        
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), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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 A pplicant contends that his discharge characterization of service was inequitable in that his misconduct of record was a n i solated incident resulting from a bad decision made under the stress of family medical problems. (2) The Applicant contends that his post - service efforts are worthy of consideration and demonstrated that his misconduct of record was an isolated incident that was not indicat ive of his overall character.

Decision

Date: 20 1 1 0818           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 two decisional issues 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 enlisted into the armed forces at age 17 (with parental consent) with a four year enlistment obligation under the Seafarer to Airman Apprenticeship program . His service record reflects enlistment without any waivers to service enlistment standards. The Applicant’s record of service reflects neither NAVPERS 1070/613 retention counseling warnings nor any nonjudicial or judicial proceedings. However, charges of violating Article 86 ( A bsence without leave) of the Uniform Code of Military Justice (UCMJ) were preferred against the Applicant while he was confined in a pre-trial confinement status.

The Applicant was separated from the military service pursuant to Article 1910-106 of the Naval Military Personnel Manual (MILPERSMAN) - Separation in Lieu of Trial by Court Martial. The Applicant’s Commanding Officer determined that the Applicant’s purported misconduct was detrimental to the good order and discipline of the service and that the misconduct warranted punitive action; as such, the command p referred charges against the Applicant for trial by court martial. The Applicant submitted a written request for administrative separation in lieu of trial by court martial (SILT), understanding that an Under Other Than Honorable Conditions characterization was the likely outcome, but requesting consideration for a General (Under Honorable Conditions) characterization of service at discharge. The command approved the request for administrative separation and the Applicant was discharged under other than honorable conditions.
(Decisional Issue) ( ) . The applicant contends that his discharge characterization of service was inequitable in that his misconduct of record was a single, isolated incident resulting from a bad decision made under the stress of family medical problems. Additionally, the Applicant contends that his post service conduct is worthy of consideration and demonstrated that his misconduct of record was an isolated incident which was not indicative of his overall character. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no documentation to rebut the NDRB’s presumption of regularity in the processing of the administrative separation in lieu of trial by court martial but did provide multiple letters of character reference and verification of employment in support of his post-service contention.

(Propriety) - In order to warrant separation in lieu of trial by court martial, the Applicant must request administrative separation - in writing - for the good of the service to escape charges that have been preferred against him for trial by a Special Court Martial or above. The request for separation in lieu of trial contains certain basic requirements - which must be satisfied - before receiving endorsement by both counsel s and approval by the Separation Authority. In that request, the Applicant must clearly affirm that his rights were explained to him thoroughly - to include his right to consult with qualified counsel. F urthermore, the Applicant must admit his guilt to the charges preferred against him and must further certify that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions .

On 04 September 20 03 , the Applicant submitted his written request for separation in lieu of trial , accepting whatever characterization of service the Separation Authority considered appropriate. It was reviewed and endorsed by the defense counsel and the chain of command and was forwarded to the Separation Authority, recommending he approve the request. On 23 September 20 03 , the Separation Authority approved the Applicant’s request to be separated and directed that he be discharged Under Other Than Honorable Conditions with a narrative reason for separation of “In Lieu of Trial by Court Martial.” Given the requirements necessary to receive an administrative separation in lieu of trial by court martial and the legal review associated with it, the NDRB determined that the Applicant ’s discharge f rom the N aval S ervice was proper and was in accordance with Article 1910-106 of the M ILPERSMAN. Accordingly, relief based on propriety is not warranted.

(Equity) - The A pplicant contends that his discharge characterization of service was inequitable in that his misconduct of record was a single, isolated incident resulting from a bad decision made under the stress of family medical problems. The Applicant was involved in misconduct - 267 days of unauthorized absence from his unit, terminated by civilian apprehension . The Commanding Officer determined that the purported misconduct by the Applicant w as egregious enough to warrant trial by court martial in order to maintain good order and discipline in the service. The Applicant chose to request administrative separation in lieu of trial by court martial to avoid the punitive consequences and admitted his guilt to the charges as specified. The Applicant alleges that he failed to return to his unit from authorized leave due to his mother falling ill and subsequently being hospitalized. At any point in the ensuing 267 days of unauthorized absence following these events , he could have surrendered himself, thereby lessening the gravity of the charges. The Applicant failed to do this and only returned to military custody due to an apprehension by civil law enforcement authorities. Although the Applicant may feel his youth, immaturity, and other personal family issues were underlying causes of his misconduct, the record clearly reflects misconduct that would warrant punitive action and which demonstrated that he was unfit for continued service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be hel d accountable for his actions.

(Equity) - The Applicant contends that his post - service efforts are worthy of consideration and demonstrated that his misconduct of record was an isolated incident. The NDRB considers 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. The Applicant provided letters of reference and documen tation regarding his employment with a defense contractor and his local church affiliation . The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful r eview of the Applicant ’ s post-service documentation, and taking into consideration the duration of absence that was terminated by apprehension, the NDRB determined the quality of the Applicant’s service generally did not meet the standard s of acceptable conduct and performance for naval personnel to warrant an upgrade in the characterization of his service.

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. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the characterization service, reflected one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate . R elief 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 . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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