ex-ITSR, USN
ND06-01168

Current Discharge and Applicant’s Request

Application Received:  				20060919
	Characterization of Service:		
	Reason for Discharge:			IN LIEU OF TRIAL BY COURTMARTIAL
	Discharge Authority:			MILPERSMAN 1910-106
	Duty Assignment/Command at Discharge:	USS JOHN C. STENNIS (CVN-74) 

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		NONE SPECIFIED
	Review Requested:			
	Representation:				
		
Applicant’s Issues:
1.  Enhance employment opportunities
2.  Discriminated against because female Hispanic
3.  Denied opportunity to rebut administrative separation
						
Decision

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall  IN LIEU OF TRIAL BY COURT-MARTIAL.

Date of Decision:					20070809
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:	

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 .  

Issue 2 (). The Board found no evidence in the record to support the Applicant’s assertion that she was discharged because she was a female Hispanic, nor does the Applicant offer any.  Although her service record does not contain the discharge package, the Board noted that the Applicant’s performance evaluations and other service record entries appear neutral and even-handed on their face, praising positive performance where warranted and identifying negative performance or conduct where warranted.  Further, the Board found the Applicant’s assertion of discrimination somewhat inconsistent with her claim of good service as reflected in her service record.  In that regard, the Board noted that in addition to the offense underlying the reason for discharge, the Applicant had also previously received nonjudicial punishment for violations of the UCMJ Articles 86, 92 and 107.  The Applicant’s assertion does not overcome the presumption of regularity attaching to governmental decision-making.  

Issue 3 ().  The Applicant asserts that, in regard to her discharge, “there was nothing I could say or do about it” and that she was “told I had no choice” according to unspecified members of her chain of command.  The Applicant offers no evidence to support this assertion.  While the record does not contain the entire administrative discharge package, the Board noted that a separation in lieu of trial by court-martial stems from a voluntary request of the servicemember.  The Board presumed regularity in the conduct of government affairs, to include presuming that a charge or charges of the UCMJ for which a punitive discharge is authorized was preferred against the Applicant, that the Applicant had the opportunity to consult with counsel, or waived such right, that the Applicant voluntarily submitted a request for administrative separation in lieu of trial by court-martial in accordance with applicable regulation and that her request was approved by appropriate authority.  The Board’s reliance on presumption is strengthened by the Applicant’s supporting documentation, which support the conclusion that the Applicant received some form of assistance from counsel from the Defense Department, Naval Legal Service Office Southwest.  

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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19981229 - 19990830  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19990831
Years Contracted:  				; Extension:  16 months
Date of Discharge:				20040521
Length of Service
	Active:					04  Yrs  08  Mths  21  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		2 Days (per DD 214)

Education Level:  				
Age at this Enlistment:  				
AFQT:  						56
Highest Rate/Rank:				IT3

Performance Evaluation Averages (number of marks):
		Performance: 3.2(6) 	Behavior: 2.3(6) 		OTA: 2.88

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ARMED FORCES EXPEDITIONARY MEDAL, HUMANITARIAN SERVICE MEDAL 

Service Record Entries Related to Characterization of Service or Reason for Discharge

20040101:	NJP for violation(s) of UCMJ, Article 86: Unauthorized absence; Article 92: Failure to obey a lawful order; Article 107: False official statement.  Award:  FOP $300.00 for 2 months, restriction and extra duty for 40 days, reduction to E-2 (suspended for 6 months).
	No indication of appeal in the record.

20040101:	Retention Warning for NJP of this date. 

Elements of Discharge:  [SEPARATION IN LIEU OF TRIAL]

Date Charge(s) Preferred:				NOT FOUND IN RECORD
Charge(s) and Specification(s):			NOT FOUND IN RECORD
	
Date Applicant Submitted SILT request:		NOT FOUND IN RECORD
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	  
Separation Authority (date):			COMCARGRU SEVEN (20040514)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20040521

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				51
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		 Student transcript, Letter of Recommendation from San Diego High School dtd 19981005, Adult CPR certificate, copy of Representative business card, Department of Veterans Affairs ltr, Representative F_, Member of Congress ltr 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), 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