Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1002183

Original file (ND1002183.rtf) Auto-classification: Denied

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20100908

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20001028 - 20001120     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020402      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of U nauthorized Absence :         20010412 - 2001041 4 ( 2 days ) ; 20010427 - 2001080 3 (9 8 days);
20010814 - 20020 2 2 6 ( 19 6 days )

Periods of C onfinement :

NJP :     S CM :    SPCM:    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:

“ UNDER OTHER THAN HONORABLE CONDITIONS ”
“ 01APR12-01APR1 4 , 01APR27- 01AUG03, 01AUG14- 02FEB2 6 ”

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 29, effective 11 July 2000 until
21 August 2002, 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

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) educational benefits.

Decisional issues: The Applicant contends that her characterization of service at discharge was inequitable ; personal circumstances related to the failing health of her g randmother (identified as her “loco parentis”) led to poor judgment and is a mitigating factor to her misconduct of record. The Applicant seeks a change to her narrative reason for discharge, but did not specify to what - only stating that the reason for her discharge w as the result of a family emergenc y .

Decision

Date: 20 1 20112 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 identif ied one decisional issue for the NDRB’s consideration (equity) ; additionally , the NDRB conducted 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 enlistment record reflects entry into military service at age 1 9 , with a waiver to enlistment standards due to pre-service illegal drug use (marijuana) . The Applicant enlisted on an initial contract for 4 years as a contract E-3 under the Seaman Apprenticeship Program. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings during h er enlistment period. Ho wever, the record of service documents three periods of unauthorized absence upon arriving at her first command: a period of 2 days, followed by a 9 8 - day period of unauthorized absence, and then, 14 days later, another period of unauthorized absence for 19 6 days. During the second and third period of documented unauthorized absence s , the Applicant was dropped from the rol ls of her ship and declared a deserter from the Armed Forces ; a D D Form 553 ( Deserter / Absentee Wanted by the Armed Forces ) was issued to Federal, State, and local law enforcement agencies requesting her apprehension and subsequent return to military custody.
Each of the periods of absence was terminated by the Applicant’s surrende r to military authorities.

The Applicant’s military service record does not contain a copy of the separation proceedings. However, 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 in order to escape charges that have been preferred against the Applicant . This request for separation must contain certain basic requirements - that must be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant must have clearly affirm ed that h er rights were explained to h er, thoroughly - to include the right to consult with a qualified legal defense counsel. Furthermore, the Applicant must admit her guilt to the charges as preferred and further certify that s he has a complete understanding of the negative consequences of h er actions, the narrative reason for h er separation, and the likely characterization of her service upon separation - Under Other Than Honorable Conditions.

(Non-Decisional Issue) The Applicant seeks a change in h er characterization of service to Honorable or General (Under Honorable Conditions) in order to facilitate access to VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of facilitating employment opportunities. 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 wh ich the NDRB can grant relief.

(Decisional Issues) ( ) . The Applicant seeks an upgrade in the characterization of h er service at discharge to Honorable or General (under Honorable Conditions) . She contends that personal circumstances related to the failing health of her Grandmother ( inferred by the Applicant to be her “loco parentis”) led to poor judgment and is a mitigating factor to her misconduct of record. Additionally, the Applicant requests a change to her narrative reason for discharge, but did not specify to what - only stating that the reason for her discharge was the result of a family emergenc y . The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.

Propriety - The Applicant absented h er self from h er unit three times , without authority, in violation of Article 86 of the U niform Code of Military Justice (U CMJ ) and on two occasions, remained absent for a period of 9 8 days and for a period of 19 6 days; each absence was terminated by her s urrender to military authority. The Applicant requested - in writing - administrative separation for the good of the service in order to avoid the punitive effects of a trial by S pecial C ourt -M artial. The command accepted the Applicant’s request; as such, the Applicant was separated properly from the Service in accordance with chapter 1910-106 and 1910-230 of the Naval Military Personnel Manual (MILPERSMAN). Accordingly, relief based on propriety is not warranted.

Equity - The Applicant contends that the failing hea lth of her g randmother was a mitigating factor that should have been considered when determining t he characterization of her service at discharge. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable or General 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 s he attempted to utilize accrued annual leave or to request temporary duty at a nearby location to help resolve the situation. Furthermore, the Applicant did not attempt to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical, or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even to request a h ardship re-assignment or discharge . The NDRB determined the Applicant’s personal problems , though challenging, were not mitigating factors to the extensive misconduct of record .

Moreover, d espite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline . Violation of Article 86 (in excess of 30 days) is one such offense and 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 the punitive discharge, but opted instead to accept the more lenient administrative discharge in lieu of trial by court - martial.

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 h er service, did reflect act s or omission s , which were a significant departure from the conduct expected of a service member. As such, the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that the Applicant’s narrative reason for discharge was a proper and correct reflection of the reason for discharge and that the characterization of service at discharge was appropriate; an upgrade or change would be inappropriate. 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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NAVY | DRB | 2010_Navy | ND1002183

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