ex-MMFA, USN  

Current Discharge and Applicant’s Request

Application Received:  20081001
Characterization of Service Received:  OTHER THAN HONORABLE
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20031014 - 20040629  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040630	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20051103	Highest Rank/Rate:  MMFN
Length of Service:   Year    Months   03 Days
Education Level:  	AFQT:  95
Evaluation Marks:  Performance:  NFIR               Behavior:  NFIR           OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM GWOTSM

Periods of UA/CONF:  

NJP:  
- 20051006:  Article 85 (Desertion), 0700, 20050815 until 2230, 20051005 (51 DAYS)
                     Awarded:      Suspended:  

SCM:      SPCM:      CC:      Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Seeking to reenlist.
2.  Deserted because of personal safety and career threatened.
3.  Post service conduct.

Decision

Date:  20090122		Location:  Washington D.C.	Representation:  

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

Discussion

:  The Applicant is seeking an upgrade and change in the RE Code for the purpose of rejoining the Armed Forces.   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, specifically the paragraph concerning s, for additional information regarding .

:  ()  .  The Applicant contends the discharge should be upgraded because his personal safety and career were being threatened by the Chief of the Boat and he was left with no option but to desert.  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 issue.  The Applicant’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 85 (Desertion).  This is considered a serious offense and could have resulted in confinement and a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not refer the Appliciant for a punitive discharge but opted instead for an administrative separation.   

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention his personal safety and career were threatened by the Chief of the Boat; or that he reported any treat, to either his career or person, to his chain of command, legal authorities, military police, chaplain or other military authorities.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the he could prove threats were made this action would neither amount to a justification nor to an adequate defense for the Applicant’s own misconduct of deserting his military unit.  

The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions).  A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The Board determined the Applicant’s violation of Article 85 of the UCMJ is a significant departure from that expected of a U.S. Sailor and the awarded discharge characterization was appropriate.  An upgrade would be inappropriate.   

:  ()  . The Applicant contends his discharge should be upgraded because he has a new daughter.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to help support a post service conduct upgrade includes, but 

is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence 
of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant’s DD-293 form, he provided no further documentation.  While the birth of any child is a great event, this undocumented event by itself is not sufficient justification to warrant an upgrade to his discharge.  To warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone do not guarantee an upgrade.  The Board determined 4:1 the awarded discharge was appropriate and an upgrade would be inappropriate.  Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance.  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

dISSENTING OPINION:

Based on a review of the evidence of record and applicable Navy regulations, the Recorder voted to upgrade the Applicant’s characterization to general (under honorable conditions).  Pursuant to MILPERSMAN 1910-304 a General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service such as use of force or violence to produce serious bodily injury or death, drug abuse, etc.  

The Recorder is opined a General (Under Honorable Conditions) is the most appropriate characterization based on the above criteria, considering the length of the unauthorized absence (approximately 51 days), his voluntary return, the Applicant’s age of less than 21 years old (youth and immaturity), length of service (on board one year and four months).  The evidence of record does not indicate the Applicant’s conduct constituted a significant departure from the conduct expected of a young service member with one year and 4 months of service.  The Applicant’s separation was appropriate, however the characterization was not equitable based on the aforementioned factors. 

I concur with the majority, there is no evidence in the record indicating the Applicant sought assistance from his chain of command or other available resources.  However, there is no indication the command offered any support or assistance to this young sailor who was obviously having a major problems with the Navy, as evidenced by the commanding officer’s letter of 12 October 2005, wherein the following is noted “at his NJP he stated that he went U/A because he would rather face jail, restriction, and a bad conduct discharge than remain on active duty.”  Based on the foregoing, it is recommended the characterization be upgraded.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 85 (Desertion).

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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