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NAVY | DRB | 2011_Navy | ND1101859
Original file (ND1101859.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20110802
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)        20071024 - 20080128     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090515      Highest Rank/Rate: AA
Length of Service: Y ear M onth s 18 D a ys
Education Level:        AFQT: 72
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Period s of UA /CONF : UA 20080603 - 20090507 (339 days )

NJP : NONE        S CM : NONE                 SPCM: NONE        C C : NONE          Retention Warning Counseling : NONE

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

 1.        Applicant seeks a discharge upgrade to improve employment opportunities.
 2.       Applicant contends the fact that he was distraught about losing his rating contributed to his misconduct.
 3.       Applicant contends his discharge was based on an isolated incident.
4.       Applicant contends h e is deserving of an Uncharacterized discharge , because his misconduct began prior to having served six months on active duty.
 5.       Applicant believes his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 09 04             Location: Washington D.C .        R epresentation : NONE

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 Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB conducted a thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards for property and equity. The Applicant’s record of service did not include any NAVPERS 1070/613 counseling retention warnings, commanding officer nonjudicial punishment s (NJP) , or trial by courts-martial. The record did reflect a 339 - day period of u nauthori zed a bsence from 0600, 3 June 2008 until 1705, 7 May 2009 that was terminated by his apprehension by civil authorities. After return to military control, the Appli cant was referred for trial by S pecial C ourt -M artial. On 11 May 2009, the Applicant submitted a request for separation in lieu of trial by court-martial (SILT) to the Commanding Officer, Transient Personnel Unit, Great Lakes, stating , “…I fully understand the elements of the offense or offenses charged in enclosure (1), and I hereby voluntarily submit this request free from any duress o r promises of any kind for an administrative discharge in lieu of trial by court-martial. I have been afforded an opportunity to consult with counsel and I waive my right to consult with counsel. I admit that I am guilty of the offenses alleged against me in the charge sheet preferred on 11 May 2009. I understand that if my discharge is Under Other Than Honorable Conditions, it may deprive me of virtually all veteran’s benefits based upon my current period of active service, and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing . ” On 13 May 2009, the Convening Authority accepted the Applicant’s SILT request and directed that he be administratively separated from the Navy with an Under Other Than Honorable Conditions discharge in l ieu of t rial by c ourt- m artial. The Applicant was discharged on 15 May 2009.

: (Nondecisional) The Applicant seeks a discharge upgrade to improve employment 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.
Issues 2-3 : (Decisional) ( ) . The Applicant contends that being distraught about losing his rating contributed to his isolated instance of misconduct for which he was separated. C ertain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; a violation of UCMJ Article 86 in excess of 30 days meet s this standard . The Applicant was well aware of the consequences of unauthorized absence. While he may feel personal stressors and his youth or immaturity contributed to his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Moreover, t he Applicant requested discharge for the good of the service to escape trial by court-martial. In the request , the Applicant noted his rights were thoroughly explained to him and he waived his right to consult counsel . Furthermore, the Applicant admitted guilt to the charges preferred against him. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be U nder O ther T han H onorable C onditions. Relief denied.

 Issue 4 : (Decisional) ( ) . The Applicant contends h e is deserving of an Uncharacterized discharge , because his misconduct began prior to having served six months on active duty. By regulation, an Uncharacterized description shall be used when separation is initiated while a service member is in an entry level status (first 180 days of continuous active service), except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as Under Other Than Honorable Conditions, or when characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant ’ s service record indicates he was returned to military authority in May 2009, more than 15 months into his period of enlistment. While in a UA status, he was still under the Navy’s authority and subject to the Uniform Code of Military Justice. Therefore, the Applicant was not eligible for , nor did the misconduct for which he was separated warrant , an Uncharacterized discharge. Accordingly, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant believes his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided certificate s of training and education, verification of volunteer fire fighter status, and a personal statement as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and the administrative separation in lieu of trial p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional 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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