ex-FR, USN
ND06-01066

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Reason for Separation:				MISCONDUCT - 
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	NAVCRUITTRACOM GREAT LAKES IL

Applicant’s Request:
	Narrative Reason change to:		ENTRY LEVEL SEPARATION
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1.  Change RE Code and re-enlist.
						2.  Recruiter misled Applicant regarding duty assignment location.
						3.  Served less than 180 days, therefore should have entry level separation 							and uncharacterized discharge.
						4.  Post-service conduct.

Decision:

Date of Decision:					20070712
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 Reason for Discharge shall   - .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990417 - 19990525 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				19990526
Years Contracted:  				NOT FOUND IN RECORD
Date of Discharge:				20030613
Length of Service:				04  Yrs  00  Mos  18  Days
Time Lost During This Period:			1362 DAYS
	Days Unauthorized Absence:		1338
	Days Confinement:			24 (PER DD 214)

Education Level:  				
Age at this Enlistment:  				
AFQT:  						31
Highest Rate/Rank:				FR

Performance Evaluation Averages: 			NOT APPLICABLE

Awards and Decorations (as listed on the DD Form 214):  NONE

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

19990807:	Applicant to unauthorized absence.

20030407:	Applicant from unauthorized absence (1338 days/surrendered).

20030428:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 86.
	Specification:  On or about 19990807 to on or about 20030407 absent herself without authority.
	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $767, confinement for 30 days, reduction to E-1.
	CA action 20030430:  Sentence approved and ordered executed.

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

None.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20030527
Reason for Discharge				MISCONDUCT - 
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20030527
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Administrative Board Date:			NOT APPLICABLE
Recommendation of Commanding Officer (date):	  (20030603)
Separation Authority (date):			COMMANDER, NAVY REGION SOUTHWEST (20030605)
	Reason for discharge directed:		MISCONDUCT - 
	Characterization directed:			 
Date Applicant Discharged:			20030613

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:				12
	Other Period of Service:				  0
       Related to Post-Service Period:
	Community Service:				  1
	Education:					  1
	Employment:					  1
	Health/Medical:					  0
	Character Statements:				  0
	Criminal Records Checks:				  0
	Additional Statements from Applicant:		  1
        Other Documentation	 (Describe Below)		  4

        Total Number of Pages:				20

       Description of Other Documentation:
       	Certificate of Death, Amendment of Medical and Health Data – Death, Letter from L_ T_, Station Commander

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  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:

Issue 2 ().  There is no evidence in the record to support the implication that Applicant’s recruiter misled her about duty assignments.  The Applicant’s own supporting statements and documentation indicate that the Applicant was advised on, and aware of, the criteria and procedure for requesting a particular duty station or geographical area, but chose to enter an unauthorized absence status rather than use proper channels.  Relief is not warranted on this issue.

Issue 3 ().  Servicemembers are eligible for, but not entitled to, an entry level separation within the first 180 days of enlistment when a basis for administrative discharge exists.  Even if a servicemember is eligible for an entry level separation, separation for misconduct is authorized when the facts and circumstances warrant such.  The Applicant was absent without leave, in violation of the UCMJ, Article 86, for over 3 years before surrendering to military authorities, being taken to summary court-martial for her offense, and subsequently being notified of administrative discharge processing.  The Applicant’s offense is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  The factual basis for the Applicant’s discharge for misconduct – commission of a serious offense with a characterization of service as under other than honorable conditions is clearly demonstrated in the record.  That reason for, and characterization of, discharge is the most appropriate under the circumstances.  Relief is not warranted on this issue. 

Issue 4 ().  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief is not warranted on this issue.

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.

Minority Opinion

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.

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, Article 86, Absence without leave (for more than 30 days).

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