ex-SR, USN
ND07-00592

Current Discharge and Applicant’s Request

Application Received:  20070403 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 	Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Applicant’s Issues:	1.  Reenlistment.
			2.  Characterization of service is too harsh. 
			3.  Post service conduct – letter confirming enrolled in college and one character reference.

Decision

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

Date:  20071120			Location:  Washington D.C	 Representation:  

Discussion

Issue 1 (Equity):   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 Applicant contends that his other than honorable characterization is too harsh.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country, certain serious offenses, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s enlistment was marred by two violations of the UCMJ Article 86 (unauthorized absence, 2 specifications totaling 146 days), violation of UCMJ Article 91 (disrespect) and a violation of UCMJ Article 95 (flight from apprehension).  The Applicant requested discharge for the good of the service to escape trial by court-martial.  Violations of UCMJ Articles 86 and 95 carry a maximum penalty of a dishonorable discharge and up to 1.5 years of imprisonment for each specification if adjudicated by a court martial.  The Applicant had the elements of the offense for which he was charged fully explained by counsel, he admitted guilt to the offenses and acknowledged a complete understanding of the negative consequences of his actions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

Issue 3 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct to the extent that 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.  The Applicant provided a letter documenting his enrollment in college and a character reference letter as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service.  

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)			20010302 - 20010415  		Active:   
Period of Service Under Review:
Date of Enlistment: 20010416	Years Contracted:  ; Extension:  	Date of Discharge:  20011204
Length of Service:  00 Yrs 07 Mths 19 Dys				Lost Time:  Days UA:  146
Education Level:  12	Age at Enlistment:  		AFQT:  38		Highest Rank/Rate:  SR
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 	OTA:  N/A 
Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20010520:	Applicant to unauthorized absence at 1100.

20010620:	Applicant declared a deserter.

20010626:	Applicant returned from unauthorized absence at 1310 (37 days, surrendered).

20010715:	Applicant to unauthorized absence at 0658.

20010815:	Applicant declared a deserter.

20011109:	Applicant from unauthorized absence at 2025 (109 days, apprehended).

Discharge Process

Charges Preferred:  20011121
Charges and Specification:  Article 86 (unauthorized absence, 2 specs) - (1) from 20010520 until 20010626, (2) from 20010715 until 20011109.
	Article 91 (disrespectful in language to a petty officer on 20010714).
	Article 95 (flee apprehension from Naval Absentee Collection on 20011115).

Date Applicant Submitted SILT request:		20011121
	Consulted with or Waived Counsel:		Consulted
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Articles 86, 91, 95 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20011121)
Separation Authority (date):			COMMANDER, NAVAL TRAINING CENTER, GREAT LAKES 							(20011204)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20011204

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 11 July 2000 until 21 August 2002, 
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 violations of the UCMJ, Articles 86 and 95.

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 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:  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