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NAVY | DRB | 2011_Navy | ND1100223
Original file (ND1100223.rtf) Auto-classification: Denied
ex-OSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20101103
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)        20040113 - 20041025     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041026     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051130      Highest Rank/Rate: OSSA
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of U nauthorized Absence (UA): 20050404 - 20050503 (29 days) ; 20050504 - 20051026 (175 days)

Period 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 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

 Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Decisional issues : The Applicant did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration , but does contend that he warrants consideration for having settled his life, maintained stable employment, and remained out of any legal troubles .
Decision

Date: 20 1 20313            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 did not identify any decisional issue s related to the equity or propriety of his discharge for the NDRB’s consideration; however, 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 21 , with waivers to enlistment or induction standards due to exceeding the Navy height and weight standards . The Applicant enlisted on a 4-year contract with a 12-month extension with a guarantee of training as a n Operations Specialist . The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings during his current enlistment. However, the record of service documents two period s of unauthorized absence : 04 April to 03 May 2005, terminated by surrender (29 days) and from 04 May to 26 October 2005 (175 days) , terminated by apprehension by civilian law enforcement authorities and return to military custody . The Applicant’s military service record did 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. This request for administrative separation must contain certain basic requirements - which 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 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 Ot her Than Honorable Conditions.

(Non-decisional Issue) The Applicant seeks an upgrade to his discharge characterization of service in order to facilitate employment opportunities . 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) benefit programs . 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 did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration , but does contend that he warrants consideration for having settled his life, maintained stable employment, and remained out of any legal troubles . 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. In the absence of a complete discharge package in the Applicant’s service record, the NDRB presumed regularity in the processing of the Appli cant’s request for separation.

Propriety - The Applicant absented himself from his unit - twice - without authority ; after surrendering himself following 29 days of absence, the Applicant absented himself again, a day later, and remained so absent until apprehended by civilian law enforcement officials and returned to military authority 175 days later . In accordance with the Uniform Code of Military Justice (UCMJ), Unauthorized Absence (in excess of 30 days, terminated by apprehension) is a serious offense, punishable by up to one and a half years confinement and a punitive discharge if adjudicated and awarded 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. 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. R elief based on propriety is not warranted.

Equity - The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. While so me members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate misconduct of the nature specified. Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline. Absence in excess of 30 days is considered a serious offense by the UCMJ. The Applicant’s service record documents two period s of unauthorized absence , following a determination by the service that the Applicant had fraudulently enlisted ; this demonstrate s a general failure to conform to military rules and regulations. The Applicant’s command determined that his mis conduct was detrimental to the good order and discipline of the command and brought discredit upon the service; as such, they determined that the misconduct warranted punitive action via trial by court - martial. Facing the punitive actions of a S pecial C ourt -M artial, the Applicant requested administrative disc harge in lieu of trial by court-martial.

The Applicant contends his post-service conduct warrants consideration for an upgrade. 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. Besides the Applicant ’ s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. 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 . The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the discharge process, the NDRB determined that the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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 the discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service


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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