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NAVY | DRB | 2011_Navy | ND1100154
Original file (ND1100154.rtf) Auto-classification: Denied
ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20101026
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:         USAR (DEP)       19990401 - 19990727 COG 
        US N R (DEP)        19990827 - 19990830     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990831     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000120      Highest Rank/Rate: S R
Length of Service: Y ear( s ) M onth( s ) 06 D a y ( s )
 Education Level:        AFQT: 59
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Period of UA : 19991122 - 20000106 ( 44 days - terminated by surrender) CONF: NFIR

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:

          “ 99NOV22-00JAN06 ”
        
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 :        




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 employment opportunities with local law enforcement agencies .
Decisional issues : (1) The Applicant contends his characterization of service at discharge was inequitable; his youth , immaturity , and personal circumstances , to include depression, led to poor judgment and are mitigati ng factor s to his misconduct of record. (2) The Applicant seeks a change to his characterization of service at discharge to “Uncharacterized,” contending that he was still in an entry-level status of less than 180 days of active service.

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. H e 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 retention-counseling warning s and no judicial or non-judicial proceedings. However, the Applicant’s service record reflects referral of charges to trial by S pecial C ourt -M artial for violation of the Uniform Code of Military Justice (UCMJ) , specifically, violation of Article 86 ( Absence without leave , 44 days, absence terminated by surrender to military authority). The Applicant’s military record contains 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 for referr al to trial by a Special Court-Martial or above. The Applicant had charges preferred against him for trial at Special Court - Martial. He elected to waive his right to consult with a qualified defense counsel and submitted his written and signed request for separation in lieu of trial to the S eparation A uthority. The request for separation contained certain basic requirements - which are required to be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant clearly affirmed that his rights were explained to him - thoroughly - to include his right to consult wi th qualified counsel, which he opted to waive . Furthermore, the Applicant admitted his guilt to the charge preferred against him and further certified that he had 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.

(Non-decisional Issue) The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities with local law enforcement agencies . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or access to Department of Veterans Affairs (VA) benefits . 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 Issue) ( ) . The Applicant contends his youth , immaturity , and personal circumstances , to include depression, led to poor judgment and are mitigati ng factor s to his misconduct of record. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, the statement submitted by the Applicant, and the circumstances unique to this case.

(Equity Issue 1 ) The Applicant contends his youth , immaturity , and personal circumstances , to include depression, led to poor judgment and are mitigati ng factor to his misconduct of record. T he NDRB recognizes that many of our service members are young at the time they enlist for service , but most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. 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 he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. The Applicant’s service record reflects that he willingly and knowingly absented himself from his command, without authority. Violation of Article 86 (in excess of 30 days) is considered a serious offense under the UCMJ, warranting punitive discharge and confinement for up to 1 year if adjudged at trial by S pecial or G eneral C ourt -M artial. The Applicant’s command determined that his conduct , though still entry-level, 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 requested administrative discharge from the service, fully aware of the likely characterization of his service and the narrative reason for his discharge that would be on his DD Form 214.

( E q uity Issue 2) By regulation , service members notified of intended recommendation for discharge within the first 180 days of their enlistment are eligible for an Uncharacterized , Entry -Level Separation characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit otherwise, an U ncharacterized discharge is generally considered the most appropriate characterization of a member’s service. An Under Other Than Honorable Conditions discharge characterization, 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. In the Applicant’s specific case, the misconduct of record was for a serious offense under the UCMJ, punishable by punitive discharge and confinement for up to one year . The Applicant requested administrative discharge in lieu of facing possible confinement and a punitive Bad Conduct Discharge; accordingly, an Under Other Than Honorable Conditions characterization of service was the mo st appropriate characterization given the serious nature of the offense and the agreement to withdraw the charges from the punitive court - martial .

The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect acts or omissions that constituted 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; an upgrade 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 .
Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
10 July 2000, 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 .


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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