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NAVY | DRB | 2010_Navy | ND1001568
Original file (ND1001568.rtf) Auto-classification: Denied

ex-QMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100608
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)        20050930 - 20051024     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051025     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090429      Highest Rank/Rate: QMSN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 3.6 ( 3 )      Behavior: 2.6 ( 3 )        OTA: 3.33

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : UA: 20090205-20090330 , 53 days . CONF:

NJP :     S CM :    S PCM:    C C :      Retention Warning Counseling :

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 31 May 2005 until Present, 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: The Applicant contends that he was wrongfully discharged as a result of proper procedures not being followed. The Applicant further contends that he had no other misconduct of record and had 40 months of service with no other adverse action.

Decision

Date : 20 1 1 1005    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 provided no additional documentation for the NDRB’s consideration or to rebut the NDRB’s presumption of regularity in governmental affairs. 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 both equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings. However, the Applicant’s service record reflects a period of unauthorized absence in violation of Article 86 (Absent without leave) of the Uniform Code of Military Justice (UCMJ) , coupled with declaration of him being a deserter and missing the movement of his ship (Article 87) . The Applicant’s record of service reflects a period of unauthorized absence from 05 February to 30 March 2009, terminating upon the A pplicant’s surrender to military authority.
The Applicant’s military record contain s a copy of the separation proceedings. In order to warrant separation in lieu of trial by court - martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been preferred against the A pplicant and referred to trial by a Special Court-Martial or above. The Applicant was referred to trial by Special Court - Martial on 08 April 2009. The Applicant submitted his request for separation in lieu of trial on 21 April 2009. Th is request for separation contain ed certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant clearly affirm ed that h is rights were explained to h im thoroughly - to include h is right to consult with qualified counsel , which he did . Furthermore, the Applicant admit ted h is guilt to the charges preferred against h im and further certif ied that he ha d a complete understanding of the negative consequences of h is actions, the narrative reason for h is separation , and the likely characterization of service upon separation - Under Other Than Honorable Conditions. The respondent acknowledged that if discharged with an OTH, it might deprive h im of virtually all veterans benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered , or the character of discharge received , may have a bearing.

 (Decisional Issue ) ( ) . The Applicant contends that he was wrongfully discharged as a result of proper procedures not being followed. The Applicant further contends that he had no other misconduct of record with 40 months of service and no other adverse action. The Applicant requested administrative separation for the good of the service in order to avoid trial by court - martial ; he consulted with, and was represented throughout the process by , an appropriately credentialed legal defense counsel . The command accepted th e Applicant’ s request; as such, the Applicant was separated properly from the N aval S ervice in accordance with chapter 1910-106 and 1910-230 of the Naval Military Personnel Manual (MILPERSMAN) . A ccordingly, relief based on propriety is not warranted.

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 Applicant’s service record reflects that he stated he would not be going on the ship’s deployment and that he then willingly departed his command, without authorization, for 53 days in violation of Article 86 of the UCMJ; this action resulted in his missing his ship ’ s movement to deploy. The Applicant’s command

determined that h is conduct was detrimental to the good order and discipline of the service and determined that the misconduct warranted punitive action via trial by court - martial . Facing the punitive action of a court - martial, the Applicant requeste d administrative discharge.

Characterization of service at discharge is based on recognition of a Sailor’s performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge , however, 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 character of his service, did reflect a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. The Applicant’s characterization of service at discharge was appropriate. Accordingly, relief is 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 IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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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