ex-RMSN, USN
ND07-00912

Current Discharge and Applicant’s Request

Application Received:  20070627 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 	Authority:  MILPERSMAN 3630650

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910613 - 19920105  		
Period of Service Under Review:
Date of Enlistment: 19920106	Years Contracted:  		Date of Discharge:  19950308
Length of Service:  03 Yrs 02 Mths 03 Dys		Lost Time:  Days UA:    
Education Level:  	Age at Enlistment:  		AFQT:  31	Highest Rank/Rate:  RMSN
Evaluation marks (# of occasions):	Performance:  3.9 (3)	Behavior:  3.8 (3)	 	OTA:  3.80 (3) 
Awards and Decorations (per DD 214):  NDSM, MUC, NER

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

19920627:	Applicant reports for duty aboard USS THEODORE ROOSEVELT (CVN 71).

19940901:	Applicant to unauthorized absence at 0700.

19941001:	Applicant declared a deserter.

19941020:	Applicant from unauthorized absence at 1200 (surrendered, 50 days).

19941020:	Applicant administratively transferred to Transient Personnel Unit Norfolk, VA.

19941031:	Applicant unauthorized absent from 1600 until 1800 (2 hours/surrendered).

19941107:	Applicant to unauthorized absence 1600.

19941108:	Applicant from unauthorized absence 0715 (15 hours, 15 minutes.)

19941119:	Applicant to unauthorized absence at 0715.

19941121:	Applicant from unauthorized absence at 0715 (2 days/surrendered).

19941127:	Applicant to unauthorized absence at 0715

19941128:	Applicant from unauthorized absence at 0715 (1 day/surrendered).

Discharge Process

Charges Preferred:  			NOT FOUND IN RECORD
Charges and Specifications:
	Article 86:  Unauthorized absence from 19940901 to 19941020 (49 days, 12 hrs, 15 mins)

Date Applicant Submitted SILT request:	19950127
	Consulted with or Waived Counsel:	Consulted
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:	Article 86 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Separation Authority (date):	COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, NORFOLK, VA (19950201)
	Reason for Discharge directed:	
	Characterization directed:	
Date Applicant Discharged:			19950308

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)  Completion of parole

Applicant’s Issues

1.  Upgrade due to medical conditions causing confusion resulting in being classified as unauthorized absent.
2.  Post Service Conduct.

Decision

Date:  20080326     Location:  Washington D.C  Representation:  

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

Discussion

: The Applicant testified that his medical condition following surgery following being struck by a car letter caused confusion at his command wherein he was marked as unauthorized absent when he was actually on convalescent leave.  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 his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was actually on convalescent leave not a deserter.  To the contrary the record documents the Applicant’s post surgery convalescent leave which ended prior to being charged as unauthorized absent from the USS Theodore Roosevelt (CVN-71) and subsequently classified as a deserter prior to his surrender after 50 days of unauthorized absence.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  
 
Issue 2 ():  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 from the Arkansas Department of Community Correction documenting his completion of probation.  He testified to providing child support and being employed prior to being declared as disabled as documentation of his post-service accomplishments.  The Applicant's efforts could have been 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 characterization of his service.  

The Applicant contends that his misconduct was the result of being improperly listed as unauthorized absent while on convalescent leave and harassed after being transferred to TPU Norfolk.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (from the Applicant’s summary of service, service record entries, medical record entries, elements of discharge, and evidence submitted by the Applicant) to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence to support his contention that he was indeed on convalescent leave while being charged as unauthorized absent or that he was harassed after reporting to TPU Norfolk.  The Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his rights were thoroughly explained to him by the civilian counsel hired on his behalf.  Furthermore, the Applicant admitted guilt to the chargers preferred against him (violation of UCMJ Article 86, unauthorized absence, 49 days).  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  Violations of UCMJ Article 86 (unauthorized absence in excess of 30 days) carries a maximum penalty of a bad conduct discharge and one year of imprisonment if adjudicated by a court martial.  The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  

Personal Appearance Hearings

NDRB Documentary Review Conducted (date):	19960304
NDRB Documentary Review Docket Number:	ND96-00301
NDRB Documentary Review Findings:	NO CHANGE WARRANTED
     
Applicant Testified:  				YES
Applicant Available for Questions:  			YES
Witnesses:  					NO 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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.

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.

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