ex-OSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20100323
Characterization of Service Received:  
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)	20071215 - 20080715  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080716	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090309	Highest Rank/Rate:  SR
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  54
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  20090120 - 20090224 (35 Days)

NJP:  	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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

Decisional issue: The Applicant contends that he warrants consideration for an upgrade in his discharge characterization of service; Applicant asserts that extenuating and mitigating circumstances as related to the emotional and physical effects of his diagnosed disease were not considered and the resulting punishment for his misconduct was excessive.  

Decision

Date:  20110429	         	Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge, if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant submitted one decisional issue for the NDRB’s consideration; in addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant provided a personal statement to the NDRB along with his official service and medical records for review.  

The Applicant entered military service at age 18 without any waivers to enlistment standards on a guarantee of training as an Operations Specialist.  The Applicant’s official record of service included no NAVPERS 1070/613 retention-counseling warnings and no nonjudicial or judicial punishments for violations of the Uniform Code of Military Justice (UCMJ).  On 20 January 2009, the Applicant absented himself from his unit (Training Support Center, Great Lakes Naval Base) and did remain so absent until 24 February 2009.  By absenting himself from his assigned place of duty, by design, the Applicant missed his assigned military occupational specialty training.  The Applicant was declared a deserter by the command on 20 February 2009; he was dropped administratively from the unit rolls and a DD-553 (Deserter/Absentee Wanted by the Armed Forces) warrant was issued to Federal, State, and local law enforcement authorities for his arrest.  On 24 February, the Applicant surrendered himself to military authority, ending his desertion status and returning to duty.       

Based on the nature of the misconduct and the need to maintain the good order and discipline of the service, the Applicant’s command determined that the violation of the UCMJ was serious in nature and warranted punitive, vice administrative, action.  On 26 February 2009, the Applicant’s command preferred formal charges against the Applicant and subsequently referred the charges for trial by special court-martial.  On that same date, the Applicant requested administrative separation for the good of the service to escape the punitive action of a trial by court-martial.  He waived his right to consult with counsel and stated that he understood the elements of the offenses charged against him.  Furthermore, the Applicant admitted, by initialing and signing a witnessed document, that he was guilty of the offenses as stated and that he understood that if he was discharged Under Other Than Honorable Conditions, it might deprive him of virtually all veterans benefits.  Finally, the Applicant also acknowledged that with his discharge, he might encounter substantial prejudice in civilian life in situations where the type of service rendered or the character of discharge received may have a bearing.  The Applicant’s request for administrative separation in lieu of trial by court-martial was approved on 04 March 2009, and he was discharged effective 09 March 2009.

(Decisional Issue) () – PARTIAL .  The Applicant contends that he warrants consideration for an upgrade in his discharge characterization of service.  The Applicant asserts that extenuating and mitigating circumstances as related to the emotional and physical effects of his diagnosed disease were not considered and the resulting punishment for his misconduct was excessive.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations also permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  The evidence of record identifies that the Applicant did violate the UCMJ and the Naval Service values of honor, courage, and commitment.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  However, the evidence of record also includes extenuating and mitigating factors of being an entry level service member, still in his formative entry level training status, who was also diagnosed with Methicillin-Resistant Staphylococcus Aureus (MRSA) - a reoccurring, contagious, lifelong, and potential life threatening, infectious disease - contracted while on active duty.  Given the unique issues of this individual case, coupled with the documentation in the official service record, the NDRB determined that the discharge was proper but not equitable.  While the NDRB does not condone the course of action the Applicant chose to take in addressing his medical health issues, the NDRB determined the awarded discharge characterization of service to be excessively harsh given the mitigation and entry level status.  As such, the NDRB determined the proper characterization of service warranted was General (Under Honorable Conditions).  Partial relief warranted.  Full relief to Honorable was not granted due to the serious nature of the misconduct.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall  , but the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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