ex-AN, USN
ND06-01032

Current Discharge and Applicant’s Request:

Application Received:  				20060808
Narrative Reason for Separation:			 BY COURT MARTIAL
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-106
Last Duty Assignment/Command at Discharge:	USS NIMITZ CVN 68

Applicant’s Request:
	Narrative Reason change to:		nONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070628		     
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20030106 - 20030812 
Active:   					NONE
Period of Service Under Review:
Date of Enlistment:  				20030813
Years Contracted:  				;        
Date of Discharge:				20051104
Length of Service:				02  Yrs  02  Mos  21  Days
Time Lost During This Period:			308
Days Unauthorized Absence:			308

Education Level:  				
Age at this Enlistment:  				
AFQT:  						40
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance:					3.0 (1)
Behavior:					4.0 (1)
OTA:						3.17

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20041129:	Applicant to unauthorized absence at 0001.

20041129:	Applicant missed ships movement.

20041229:	Applicant declared a deserter.

20051003:	Applicant from unauthorized absence at 1450 (308 days/surrendered).

20051005:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Did on or about 20041129, without authority, absent herself from unit, and did remain so absent until on or about 20051003.

20051024:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with civilian counsel and was fully advised of the implications of her request.  The Applicant stated she understood the elements of the offense with which she was charged, and admitted she was guilty of all the charges preferred against her.  Specifically, she admitted to violating UCMJ, Article 86 (unauthorized absence) by remaining absent from her assigned place of duty from 20041129 until 20051003.  The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

20051024:	Commanding Officer, Transient Personnel Unit, Norfolk, approved the Applicant’s request for administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge as under other than honorable conditions in accordance with MILPERSMAN 1910-106.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
None.

Elements of Discharge  [REQUESTED BY MEMBER]

Discharge Process:					Voluntary:  Requested by Member
Date Member Requested Separation:			20051024
Member Requested Separation Due To:			 BY COURT MARTIAL
Characterization Requested:				UNDER OTHER THAN HONORABLE CONDIONS
member Recognized Least Favorable:			
Recommendation of Commanding Officer (date):		NONE        
Discharge directed by (date):	COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, NORFOLK, 20041024
Narrative reason directed:					 BY COURT MARTIAL
Characterization directed:					
Date Applicant Discharged:				20051104

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				2

Applicant’s Issues as Summarized by the Board:
1.  Requests RE code change to allow re-enlistment.

Issue 1:     which the Board cannot form the basis of relief for the Applicant, and  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

On 20051024, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that her civilian counsel had fully explained the elements of the offenses for which she was charged and that she was guilty of the offenses.  She further certified a complete understanding of the negative consequences of her actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  

In the Applicant’s letter to the Board she implies that her misconduct was the result of being sexual harassed by her chain of command.  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 her claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was being sexually harassed and after reporting no actions were taken.  However, even if the Applicant could document her claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects her willful misconduct which demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and 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 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 that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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