x-AA, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:      MATTER OF CLEMENCY

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       19970430 - 19971116     Active: 

Period of Service Under Review:

Date of Current Enlistment: 19971117     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 19991230      Highest Rank/Rate: AN
Length of Service: Year(s) Month(s) 14 Day(s)
Education Level:         AFQT: 35
Evaluation Marks:        Performance: NFIR        Behavior: NFIR   OTA: NFIR

Awards and Decorations (per DD 214):    

Periods of UA: 19990111-19990112 (2 days)        CONF:

NJP:

- 19990519:      Article
         Article 3 specifications
         Awarded: Suspended:

- 19990629:      Article
         Article
         Awarded: Suspended: NONE

- 19990730:      Article
         Article 2 specifications
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19990519:      For violation of UCMJ Article 86 (absence without leave), Article 111 (drunk driving), and Article 134 (underage drinking and disorderly conduct).


Administrative Corrections to the Applicant’s DD 214

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

         “02 01 14”
         “”
         “MILPERSMAN 1910-106”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ.

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

Applicant’s Issues

1. The Applicant contends an upgrade would make him eligible for VA Benefits.
2. The Applicant contends that his in service conduct merits an upgrade.
3. The Applicant contends his discharge was inequitable because it was based on an isolated incident.
4. The Applicant contends youth and immaturity contributed to his misconduct.
5. The Applicant contends that personal problems contributed to his misconduct.
6. The Applicant contends he accepted the Other Than Honorable discharge without understanding that he was forfeiting his future benefits and that his attorney directed him and he followed believing the attorney had his best interest at heart.
7. The Applicant contends his post service conduct merits consideration for an upgrade.

Decision

Date: 20150402            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), Article 92 (Failure to obey order or regulation), Article 128 (Assault), Article 134 (General article, 5 specifications). Facing additional charges at a Special Court-Martial, the Applicant voluntarily submitted a request for separation in lieu of trial by court-martial (SILT). The NDRB did not have the Applicant’s administrative separation package and separation in lieu of trial by court-martial agreement. Based on the Applicant’s DD 214, The Navy accepted his request and discharged him Under Other Than Honorable Conditions.

: (Nondecisional) The Applicant contends an upgrade would make him eligible for VA 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.

Issues 2-3: (Decisional) () . The Applicant contends that his in service conduct merits an upgrade. The Applicant contends his discharge was inequitable because it was based on an isolated incident. The NDRB was unable to review the Applicant’s complete discharge package and SILT, as it was not included in his official service record. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package and SILT ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant entered into a SILT agreement with the Navy and that separation from the Navy was appropriate. Relief denied.





4: (Decisional) () . The Applicant contends youth and immaturity contributed to his misconduct. 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 than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

5: (Decisional) () . The Applicant contends that personal problems contributed to his misconduct. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable 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 available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.

6: (Decisional) () . The Applicant contends he accepted the Under Other Than Honorable Conditions discharge without understanding that he was forfeiting his future benefits and that his attorney directed him and he followed believing the attorney had his best interest at heart. The record shows the Applicant was not taken to court-martial but was administratively separated from the Navy after requesting a SILT. Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. Relief denied.

7: (Decisional) () . The Applicant contends his post service conduct merits consideration for an upgrade. The board members applaud the Applicant’s honesty in presenting his story, taking responsibility for his actions both in and post-service, and in his work towards self-rehabilitation. The NDRB is encouraged by the support of those around him as evidenced by the positive written character references provided as documentation of his work towards self-improvement. Finally the NDRB wishes the Applicant continued success in his ongoing recovery and congratulates him on his seven years of clean and sober living.

With respect to his post-service conduct and petition statement, 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, evidence of financial stability and continuous employment, and three character references. 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a Personal Appearance Hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for any further reviews or issues. Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm .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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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