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NAVY | DRB | 2014_Navy | ND1400060
Original file (ND1400060.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20131008
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       CONVENIENCE OF THE GOVERNMENT OR SEC’Y DIRECTION

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20061127 - 20070813     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070814     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080610      Highest Rank/Rate: SR
Length of Service: Year(s) Month(s) 28 D ay(s)
 Education Level:        AFQT: 51
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Period of UA : 20080311-20080603, 84 days

NJP :    S CM :   SPCM:            C C :     Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20130719
NDRB Documentary Review Docket Number:   ND13-00221
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

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

          “ SR ”
         “ E1 ”
        
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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:                  Other Documentation:    
                  Additional Statements:
          From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

 1.       The Applicant contends he was suffering from mental illness that mitigates his misconduct.
2.       The Applicant contends his disciplinary problems were the result of stress caused by the death of a family member and role model.
3.       The Applicant contends youth and immaturity combined with only a short period of experience in the Navy contributed to his misconduct.
4.       The Applicant contends his enlistment and misconduct were the result of being misled by his recruiter.
5.       The Applicant contends his post-service conduct and record of steady employment is worthy of an upgrade.

Decision

Date: 20 1 4 0516             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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant entered into an absence without leave status for 84 days from 11 March 2008 to 03 June 2008. On 05 June 2008, the Applicant submitted his request for separation in lieu of trial by court-martial (SILT). In the request for discharge, the Applicant noted that he waived his right to counsel but fully understood the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. The Navy accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Decisional) ( ) . The Applicant contends he was suffering from mental illness that mitigates his misconduct. He contends depression due to his inability to gain the occupational specialty he desired and the death of his grandfather factored into h is misconduct. There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment s, such as the Navy Chaplain or Medical or Mental Health professionals. Further, in-service medical evaluations conducted upon the Applicant’s return from his unauthorized absence and for his separation from service listed his medical condition as “better” than his last in-service medical evaluation and listed no physical or mental health concerns . The Applicant signed these evaluations and made no mention of seeing civilian mental health providers, taking mental health medications, or addressing injuries from alleged suicide attempts while absent without leave as listed in the affidavit he submitted with his application to the NDRB. The medical treatment summary provided by the Applicant for his single in-service visit from his civilian primary care physician with a specialty in internal medicine was not found to be a compelling document as a mental health diagnosis . Relief denied.

: (Decisional) ( ) . The Applicant contends his disciplinary problems were the result of stress caused by the death of a family member and role model. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those servicemembers, 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 use the numerous services f or servicemembers who undergo personal problems during their enlistment s . The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.
: (Decisional) ( ) . The Applicant contends youth and immaturity combined with only a short period of experience in the Navy contributed to his misconduct. While the Applicant may feel his youth, immaturity, and inexperience were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature and experienced than others, the NDRB does not view a member’s claim of immaturity or inexperience to be a mitigating factor or a sufficient reason for misconduct. The Applicant’s record of service notes that he was 25 years old at the time he enlisted and had worked in both a restaurant and as a mortgage broker as documented by his enlistment paperwork. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

4: (Decisional) ( ) . The Applicant contends his enlistment and misconduct were the result of being misled by his recruiter. The Applicant contends his misconduct was the result of feeling used and neglected over alleged misrepresentations by his recruiter. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.
5: (Decisional) ( ) . The Applicant contends his post-service conduct and record of steady employment is worthy of 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. The Applicant provided a detailed legal brief including multiple affidavits, evidence of financial stability and continuous employment, selected documents from his service record, a signed summary of his civilian primary care physician’s evaluation of him during his unauthorized absence and immediately post-service, family photographs, his grandfather’s death certificate, a local police records certification showing he has not been convicted of any criminal activity, and medical articles. After a complete review of the documentation and after listening to the Applicant’s testimony at his hearing, t he Board determined t he characterization of service received was appropriate considering the length of service and UCMJ violation. 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 d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.

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 .


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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