Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100133

Original file (ND1100133.rtf) Auto-classification: Denied

ex-BMSN, USN

Current Discharge and Applicant’s Request

Application Received: 20101020

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 [IN LIEU OF TRIAL BY COURT MARTIAL]

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19800723 - 19810623     Active:          19810624 - 19850724 HON
         USNR     19850725 - 19860314 HON to enlist in USAR

Period of Service Under Review:
Date of Current Enlistment: 19890509     Age at Enlistment:
Period of E nlistment : Years 16 MONTHS Extension
Date of Discharge: 19970110      Highest Rank/Rate: BM2
Length of Service: Y ear( s ) M onth( s ) 02 D a y ( s )
Education Level:        AFQT: 62 / 64
Evaluation M arks:         Performance: 4.0 ( 6 )      Behavior: 4.0 ( 6 )        OTA: 4.00        ( 4.0 Eval scale)
         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00        ( 5.0 Eval scale)

Awards and Decorations ( per DD 214): , (2), , , ,

Periods of U nauthorized Absence (UA): 19960802 - 19960822 ( 21 days ) ; 19960824 - 19961116 ( 86 days )
Periods of Confinement: NFIR

NJP :     S CM :    SPCM:    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 14, effective 3 October 1996 until 11 December 1997, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 his characterization of service at discharge was inequitable; personal circumstances, including his wife’s surgery, subsequent coma, and amnesia , led to poor judgment and are mitigation for his misconduct of record. Moreover, t he Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwis e outstanding military career.

Decision

Date: 20 1 2 0313 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. T he 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 his original entry into military service at age 1 9 on a 4 year enlistment contract with an “A” school guarantee for training as a n Intelligence Specialist . The Applicant completed t his enlistment contract honorably and was transferred subsequently to the Naval Reserve. After serving approximately eight months in the Naval Reserve, the Applicant transferred to the United States Army Reserve. The Applicant subsequently reenlisted in the active duty component of the United Sates Navy on 09 May 1989. The Applicant was on his second enlistment contract for six-years ( with 16 months of extensions ) of service as a Boatswain ’s Mate when, after completing 7 years and 8 months of his contract, he was involuntarily discharged in l ieu of trial by court-martial. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings during the enlistment period under review . However, the record of service documents two period s of unauthorized absence : from 02 August to 22 August 1996 (21 days) and from 24 August to 16 November 1996 (86 days) - each period of absence was terminated by surrender ing himself to military authorities.

The Applicant’s military service record does not contain a copy of the separation proceedings. However, i n 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 for trial by a Special Court-Martial or above. The Applicant’s statement documents that he did request and receive a separation in lieu of trial as documented on his DD Form 214. In processing a re quest for administrative separation , the request must contain certain basic requirements - that must be satisfied - before receiving approval by the Separation Authority. In the Applicant’s request, he must clearly affirm that his rights were explained to him - thoroughly - to include his right to consult with qualified counsel. Furthermore, the Applicant must admit his guilt to the charges, as preferred against him, and must further certif y that he has a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions.

(Decisional Issues) ( ) PARTIAL . The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable or General ( U nder Honorable Conditions) . The Applicant contends his characterization of service at discharge was inequitable; personal circumstances, including his wife’s surgery, subsequent coma, and amnesia , led to poor judgment and are mitigation for his misconduct of record. Moreover, t he Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.

Propriety - The Applicant absented himself from his unit - without authority - and remained so absent until surrendering himself to military authority ; his actions resulted in two , back-to-back , unauthorized absences with a combined time lost of over 100 days . In accordance with the Uniform Code of Military Justice (UCMJ), Unauthorized Absence (in excess of 30 days ) is a serious offense, punishable by up to one year of confinement and punitive discharge if adjudicated and awar ded as part of a sentence by a S pecial or G eneral C ourt- M artial . The Applicant requested 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. T he 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. Accordingly, relief based on propriety is not warranted.

Equity - The Applicant contends his misconduct of record was the result of emotional dis tress caused by his family situation and that the characterization of his discharge should be considered for upgrade based on the unusual mitigating and extenuating circumstances involved. T he NDRB reviewed the Applicant’s service record as well as his in-service medical record; t here is ample evidence in the record that supports the Applicant ’ s contentions. The NDRB determined the Applicant’s unique and well - documented issues were mitigating and extenuating factors to his misconduct , were an aberration to his demonstrated and well-documented service, and did warra nt additional consideration.

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. 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. The NDRB found that the evidence of record, along with the Applicant’s supporting documentation, contain ed sufficient mitigating and extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. T he NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful , but that significant negative aspects of the member’s conduct or performance of duty did outweigh the positive aspects of the member’s service record . A s such, the NDRB agreed unanimously that the characterization of service at discharge , as awarded, was inequitable ; by a vote of 5-0, the NDRB determined that the Applicant’s characterization of service at discharge shall change to General (Under Honorable Conditions). However, by a vote of 4-1, the NDRB determined that the narrative reason for separation - in lieu of trial by court - martial - was accurate and properly reflected the reason for discharge and that no change was warranted . Accordingly, p artial relief is provided. Full relief to Honorable was not granted due to the serious nature of the misconduct.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, the Applicant’s supporting documentation, and the discharge process, the NDRB determined that the discharge was proper , but not equitable . Therefore, the awarded characterization of service shall GENERAL ( UNDER HONORABLE CONDITIONS ), but the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. Since fifteen years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review. The Applicant is directed to the Addendum for further information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2011_Navy | ND1100133

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