ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20100902
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 3630650 [IN LIEU OF TRIAL BY COURT MARTIAL]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19960703 - 19960723  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19960724	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970429	Highest Rank/Rate:  SA
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  68
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of Unauthorized Absence (UA): 19961015-19961020 (6 days); 19961028-19961108 (12 days); 19961121-19961210 (20 days); 19961211-19961217 (7 days); 19961226-19961230 (5 days); 19970106-19970115 (10 days); 19970117-19970121 (5 days).  
Periods of Confinement:  None Found in Record

NJP:  	SCM:  	SPCM:  	 CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “96OCT15-96OCT20, 96OCT28-96NOV08, 96NOV21-96DEC10, 96DEC11-96DEC17, 96DEC26-96DEC30, 97JAN06-97JAN15, 97JAN17-97JAN21”
	
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:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 
11 December 1997, 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 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.

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge and his re-entry code in order to facilitate reenlistment in the armed forces.
  
Decisional issues: The Applicant contends that his discharge characterization of service was inequitable, because the Applicant was young and impressionable at the time of his discharge.  Additionally, the Applicant contends that his characterization of service at discharge was inequitable, because his recruiter misled him and took advantage of him and then he was not allowed out of his contract, which led to his poor judgment and is mitigation for his misconduct of record. 
  
Decision

Date:  20111208	        	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.  Additionally, 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’s enlistment record reflects entry into military service without waivers to enlistment standards.  He enlisted under an Advanced Electronics Training Option contract with an agreement for 4 years of active duty military service with a 24-month extension.  The Applicant’s record of service documents no retention-counseling warnings and no nonjudicial or judicial proceedings for any violations of the Uniform Code of Military Justice (UCMJ).  However, the service record does document the fact that the Applicant absented himself from his unit, without authority, and remained absent on seven different occasions throughout a three-month span.  These absences ranged from 5 days to 20 days of unauthorized absence.

The NDRB presumed regularity in the conduct of governmental affairs in this case due to the absence of the Applicant’s administrative discharge package in his official service record.  However, in order to warrant the narrative reason for separation that the Applicant received - Separation in Lieu of Trial by Court-Martial - the Applicant must have requested, in writing, that a Special or General Court-Martial convening authority administratively separate him in order to avoid the punitive effects of a trial by court-martial.  This type of request has specific elements, which are required to be satisfied, before the request may be accepted, in order to protect the legal rights of the Applicant and ensure his understanding of what his request may bring.  

(Nondecisional Issues)  The Applicant seeks an upgrade in the characterization of his service at discharge and his re-entry code in order to facilitate reenlistment in the armed forces.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment.  The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  Additionally, only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  The Applicant may petition the BCNR using a standard DD Form 149.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

(Decisional Issues) ()  .  The Applicant contends that his discharge characterization of service was inequitable, because the Applicant was young and impressionable at the time of his discharge.  Additionally, the Applicant contends that his characterization of service at discharge was inequitable, because his recruiter misled him and took advantage of him and then he was not allowed out of his contract, which led to his poor judgment.

(Propriety)  In order to receive the type and narrative reason for separation that the Applicant received, he must have requested - in writing - an administrative separation for the good of the service in order to avoid charges that have been preferred against the Applicant for trial by court-martial.  The request for separation in lieu of trial (SILT) contains 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 have been explained to him - to include his right to consult with qualified legal counsel.  Furthermore, the Applicant must admit his guilt to the charge(s) preferred against him and 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 service upon separation - Under Other Than Honorable Conditions (OTH).  The respondent must further acknowledge that if discharged with an OTH, it might deprive him of virtually all veterans benefits.  The request for separation must satisfy all elements, as established by the Naval Military Personnel Manual (MILPERSMAN), before being accepted by trial counsel and, ultimately, the Convening Authority.  Once a SILT request meets these requirements, the command may accept the Applicant’s request and withdraw the punitive charges that were preferred for trial by Special or General Court-Martial.  The NDRB determined that the Applicant was discharged properly from the Naval Service in accordance with Article 1910-106 of the MILPERSMAN; accordingly, relief based on propriety is not warranted.

(Equity)  The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments honorably.  While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate misconduct.  Moreover, despite a servicemember’s prior record of service, certain offenses, especially repetitive violations of those offenses, may warrant separation from the Naval Service to maintain good order and discipline.  The Applicant’s repetitive violation of Article 86 as documented in his service record warranted administrative separation or punishment by trial by court-martial, regardless of the Applicant’s grade or time in service.  This action usually results in an unfavorable characterization of discharge.  The Applicant requested his separation in lieu of trial and acknowledged, in writing, the likely characterization of his service (Under Other Than Honorable Conditions) and its effects.  The NDRB found that the deliberate and repetitive misconduct of record warranted separation, that the separation was proper and equitable as issued, and that a change or upgrade was not warranted and would be inappropriate.  Relief not warranted.

The Applicant contends that his recruiter misled him and took advantage of him, and then he was not allowed out of his contract.  There is no evidence in the record and the Applicant provided no evidence or documentation to suggest he was in anyway misled.  The Applicant initially enlisted with an enlistment guarantee (dated 19960703) specifying that he would receive a $4,000.00 enlistment bonus and an assignment to Advanced Electronics schooling if he enlisted by October 1996; this guarantee was cancelled and was superseded by a new enlistment guarantee (dated 19960718).  The final guarantee was for the same “A” school, but with a $3,000.00 bonus that required the Applicant to enlist by July 1996.  Additionally, the Applicant was found qualified for, and enlisted under, the Accelerated Advancement Program.  This program qualified the Applicant for accelerated promotion, as recommended by his command, if his performance at Recruit Training and his “A” school was in the top 10% – it did not guarantee his promotion.  The NDRB found this issue to be without merit; as such, relief is not warranted.

Characterization of service at discharge is recognition of a Sailor’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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 characterization of service 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.  Given the facts of the record, and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances.  As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s submitted documentation, his summary of service,  record entries, and discharge process, the NDRB found   Therefore, the awarded characterization of service shall   and 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 his 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