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NAVY | DRB | 2011_Navy | ND1102119
Original file (ND1102119.rtf) Auto-classification: Denied

ex-GMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20110915
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)        19950330 - 19950925     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950926     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980414      Highest Rank/Rate: GMSN
Length of Service: Y ear( s ) M onth( s ) 19 D a y ( s )
 Education Level:        AFQT: 45
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.67

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :     UA: 19 980130 - 1998030 5 ( 3 4 days )                 19980306 - 19980311 ( 5 days )
 CONF (pretrial) : 19 980311 - N ot Found in Record

NJP : 6

- 19960516 :      Article (Absence without leave , 2 specifications )
         Article (Provoking speech or gestures , 19960422 )
         Article 128 (Assault , 19960422 )
         Awarded: (to E-2) Suspended:

- 19960912 :      Article (Absence without leave)
         Awarded: (to E-1) Suspended: (suspend 6 months)

- 199 7 091 1 :      Article ( Failure to obey an order or regulation, dereliction in the performance of duties)
         Awarded : Susp ended: (suspend 6 months)
         [* Suspen ded sentence vacated on 19971107 ]

- 19971107 :      Article (Failure to obey an order or regulation)
         Article (False official statement)
         Awarded : RIR (to E-2; vacated suspended RIR) ORAL ADMONITION Susp ended:

- 19980126 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded : (to E-2) Susp ended:

- 19980127 :      Article (Absence without leave)
          Article (Disrespect toward a superior commissioned officer)
         Article (General A rticle, breaking restriction)
         Awarded : (to E-1) Susp ended:


S CM :             S PCM:    C C :

Retention Warning Counseling :

- 19960516 :       For violation of UCMJ Article 128 (Assault), 117 (Provoking speech and gestures) , and Article 86 (U nauthorized absence).
- 19970812 :       For violation of UCMJ Article 92 (D ereliction in the performance of duties ) and Article 107 (F alse official statements ) .

- 19970911 :       For violation of UCMJ Article 92 (D ereliction in the performance of duties ) .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ DISCHARGED ”
         “ ”
         “ MILPERSMAN 1910-106 ”
         “ 98JAN30 TO 98MAR05, 98MAR06 TO 98MAR11 ”
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 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 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran benefits.

Decision

Date: 20 1 2 1004             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 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. T he Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 5 specifications ), Article 89 (Disrespect to a superior commissioned officer), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 15 January 1998 ), Article 92 ( Failure to obey an order or regulation, dereliction in the performance of duties, 5 specifications ) , Article 107 (False official statement, 4 specifications ), Article 117 (Provoking speech or gestures, 22 April 1996 ), Article 128 (Assault, 22 April 1996 ), and Article 134 (General Article, restriction breaking ).

On 30 January 1998, the Applicant was directed to proceed to the Regional Support Group (Norfolk) for a temporary additional duty assignment. The records indicate he checked into lodging at or about 1600 on 20 January 1998 and then proceeded to his home of record in North Carolina without permission (absence without leave status). The Applicant was declared a deserter and remained in deserter status until his surrender on 6 March 1998 at 1106 (a period of 34 days). Due to the Applicant’s repetitive offenses and willingness to depart on unauthorized absence, his command opted to place him in pre-trial confinement while charges were filed for trial by court-martial. While being escorted in a government vehicle to receive a confinement physical exam, the Applicant escaped the vehicle while stopped at a traffic light and fled. The Applicant remained in a UA status until his surrender to military authority on 11 Mar 1998 (a period of 5 days) . Upon his return and surrender , the Applicant was immediately placed into pre-trial confinement. Based on the repetitive and serious nature of the offenses committed by the Applicant, command referred him for trial by S pecial C ourt- M artial for violations of UCMJ Article 86 (UA) and Article 95 (Desertion) . On 24 March 1998, after consulting with a qualified counsel, the Applicant submitted a request to the Special Court - Martial Convening Authority requesting administrative separation from the Navy in lieu of a trial by court martial (SILT) . In the request, the Applicant, in exchange for pleading guilty to violation of UCMJ Article 86 , offered to accept administrative separation with the least favorable characterization of service Under Other Than Honorable Conditions, thereby avoiding a possible conviction and punitive discharge via Special Court-Martial. After considering the facts and circumstances surrounding the Applicant’s misconduct, the Convening Authority approved the Applicant’s request and directed that he be administratively separated with an Under Other Than Honorable Conditions discharge due to Separation in Lieu of Trial by Court - Martial. The Applicant was discharged as directed on 14 April 1998.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally , the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.




The NDRB co nducted a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. In reviewing discharges, the Board 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 was administratively separated from the Navy via the SILT process after approval of his request in order to escape trial by court - martial and a possible conviction and punitive discharge. With no evidence within the record or submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB found that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Accordingly, the Board determined this issue did not provide a basis for which relief could be granted. 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 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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