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NAVY | DRB | 2014_Navy | ND1400834
Original file (ND1400834.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20140331
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)        20030409 - 20030620     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030621     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050803      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 13 D a y ( s )
 Education Level:        AFQT: 42
Evaluation M arks:         N ot Found in Record

Awards and Decorations ( per DD 214):     

Pe riods of UA : 20041220 - 20041221, 1 day; 20041227 - 20050717, 202 days

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:

          Block 12b, Separation Date this Period, should read: 05 AUG 03.
          “ 20041220 - 200412 2 1; 20041229 - 20050717. ”

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:                  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

 1.        The Applicant contends that based on extenuating circumstances concerning the horrific situation on his ship, he warrants an upgrade to Honorable.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 4 0904            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 discharg e 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 discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two periods of unauthorized absence (1 day and 202 days). Upon his return from the 202-day period of unauthorized absence, the Navy referred charges of violating U niform Code of Military Justice (U CMJ ) Article 86 (Absence without leave) to a Special Court-Martial. Facing the possibility of a punitive Bad Conduct Discharge, confinement, fine, and a reduction in rank to E-1, on 18 July 2005, the Applicant requested to be separated in lieu of trial by court-martial after he admitted guilt to the offenses. The Navy accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial on 3 August 2005.
: (Decisional) ( ) . The Applicant contends that based on extenuating circumstances concerning the horrific situation on his ship, he warrants an upgrade to Honorable. The Applicant states that he was verbally harassed, physically beaten, mentally tortured, and forced into life - threatening work situations by his superiors and peers in his work section while aboard ship. The Applicant states that he could not reveal the conditions he was under to his command for fear he would be harmed. The Applicant states he began to have thoughts of harming himself or others and spoke to the ship’s Chaplain, but did not tell the Chaplain about the actions of his superiors and peers in his work section. The Applicant contends his only solution to his torment was to leave his command. Other than the Applicant’s statements, he provide d no evidence to the NDRB to support his contentions. 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. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Nowhere in the Applicant’s record of service is there any indication of any unfair treatment by anyone in his chain of command or on his ship. When he returned from the 202-day period of unauthorized absence, he was not returned to his ship and therefore had no fear of retaliation, yet he still made no allegations of abuse to anyone in the chain of command. While there is absolutely no evidence to corroborate the Applicant’s contentions, what is found in his records are 1-day and 202-day periods of unauthorized absence. Based upon the egregious misconduct with the extended period of unauthorized absence, the Navy referred charges of violating UCMJ Article 86 to a Special Court-Martial. At a Special Court-Martial, the Applicant could have detailed his alleged abuse as mitigation for the misconduct, yet he instead requested separation in lieu of trial by court-martial. Contrary to the error made by the Department of Veterans Affairs (VA) in their Administrative Decision concerning the quality of the Applicant’s service, the Navy withdrew the charges ONLY AFTER the Applicant waived his right to consult with a qualified counsel, admitted guilt to the charges, certified a complete understanding of the negative consequences of his actions , and acknowledged 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. After reviewing his request, the Navy agreed to administratively discharge him Under Other Than Honorable Conditions.


After a review of the Applicant’s service record, the NDRB determined his misconduct was willful and violated the tenets of honorable and faithful service, and his allegations of abuse did not mitigate his misconduct. Further, this Decisional Document will become a part of his official record and could result in the complete revocation and repayment of all VA benefits, to include home loan, medical, education, and disability benefits. Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. 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. The Applicant provided a personal statement and a marriage certificate. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion 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 to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board the characterization of service received was appropriate considering the length of service and serious 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 . T he 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.

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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