ex-SH3, USN

Current Discharge and Applicant’s Request

Application Received: 20100622
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)	19961121 - 19971017  	Active:	  19980106 - 20011021  HON
	USNR (DEP)	19971020 - 19980105  

Period of Service Under Review:
Date of Current Enlistment:  20011022	Age at Current Enlistment:  22
Period of Enlistment:   Years with 3 month extension
Date of Discharge:  20041115	Highest Rank/Rate:  SH3
Length of Service:   Years     Months   25 Days
Education Level:  	AFQT:  59
Evaluation Marks:	Performance:  3.4 (5)	Behavior:  2.5 (5)	OTA:  3.09

Awards and Decorations (per DD 214):	(3)    

Periods of UA/CONF:  

NJP:  1
- 20040816:	Article  (Failure to obey order or regulation) 
	Article  (Provoking speeches or gestures) 
	Awarded: RIR FOP  Suspended:  Specifics, but details not found in record.  
Suspension revoked: 20041002 due to continued misconduct.      

SCM:  NONE	SPCM:  	CC:  	Retention Warning Counseling:  NONE 

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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:	

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

Applicant’s Issues

Decisional issues: The Applicant contends that his discharge characterization of service was inequitable; the misconduct of record was mitigated by ongoing depression and compounded by personal family issues and the death of his mother.  

Decision

Date:  20111020	          	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 NDRB 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 identified one decisional issue for the NDRB’s consideration; additionally, the NDRB conducted 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 both equity and propriety.  

The Applicant was serving on his second enlistment with the United States Navy, having honorably completed his first 4-year enlistment contract in October 2001.  The Applicant immediately re-enlisted on a 4-year and 3-month enlistment contract that commenced on 22 October 2001.  The Applicant’s record of service during his current enlistment period included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings.  However, the Applicant’s service record reflects a series of unauthorized absences in violation of Article 86 (Absence without leave, 2 specifications).  The Applicant’s military record does not contain a copy of the separation proceedings; as such, the NDRB presumed regularity in the conduct of governmental affairs.  The Applicant’s service record documents processing for violation of Article 86 – 2 specifications of absenting himself from his unit, without authority, and remaining so absent until surrendering himself to military custody.  Exact dates of the absences are not documented in the service record, however, violation of Article 86 in excess of 30 days is a serious offense, warranting a Bad Conduct Discharge if adjudged at trial by Special or General Court-Martial.  In order to warrant consideration for a separation in lieu of trial by court-martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been referred to trial by a Special Court-Martial or above.  This request for separation must contain certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority.  In the request, the Applicant must clearly affirm that his rights were explained to him thoroughly - to include his right to consult with qualified counsel.  Furthermore, the Applicant must admit his guilt to the charges preferred against him and further certify that he has a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions.  The respondent must also acknowledge that if discharged with an OTH characterization of service, it might deprive him of virtually all veterans benefits.

(Decisional Issue) ()  .  The Applicant contends that his misconduct of record was mitigated by ongoing depression that was compounded by personal family issues and the death of his mother.  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 Applicant’s service record reflects two periods of unauthorized absence from his command during his current enlistment, coupled with three nonjudicial punishments for unauthorized absence and three retention-counseling warnings for the same in his preceding period of enlistment.  Based on the repetitive nature of the misconduct, the command determined the misconduct was detrimental to the good order and discipline of the service, that retention in the Applicant’s case was no longer warranted, and that the misconduct warranted punitive action via trial by court-martial.  Facing the punitive action of a Special or General Court-Martial, the Applicant requested administrative discharge for the good of the service.  As such, the Applicant was separated properly from the Naval Service in accordance with chapter 1910-106 of the Naval Military Personnel Manual.  Accordingly, relief based on propriety is not warranted.

The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably.  Although the Applicant’s service record does document a clinical finding of, and treatment for, depression, it did not find the Applicant unfit for duty or not responsible for his actions.  While it is understood that some members may be less mature than others, the NDRB does not view a member’s claim of immaturity, depression, or personal family problems to be a sufficient reason to justify misconduct.  Furthermore, certain serious offenses warrant separation from the service to maintain good order and discipline; repetitive unauthorized absence and blatant disregard of corrective measures can be such an offense.  Misconduct of this nature usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  In the Applicant’s case, his overall service record documents a chronic pattern of misconduct that included absenting himself from his unit and disobedience to orders and regulations, demonstrating that continued retention was no longer warranted.  As such, the command chose to pursue a punitive discharge through trial by court-martial; the Applicant opted instead to seek the more lenient administrative discharge by requesting separation in lieu of trial by court-martial.    

The NDRB commends the Applicant for completing his first enlistment period with an Honorable characterization; however, each period of enlistment is an independent obligation and characterization of service is determined for that specific period.  Characterization of service at discharge is based on recognition of a Sailor’s performance and conduct; when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge, however, is appropriate 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.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service during this enlistment period, did reflect misconduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of a service member.  The Applicant requested administrative separation to avoid trial by court-martial and the possibility of reduction in rank to E-1 with confinement and a Bad Conduct Discharge.  The awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances.  As such, the Applicant’s characterization of service at discharge was appropriate.  Accordingly, relief is denied.

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   and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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.  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 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