ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received: 20100902
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	CHANGE TO RE 3

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20050505 - 20060313  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060314	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080206	Highest Rank/Rate:  ENFN
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  47
Evaluation Marks:	Performance:  2.0 (1)	Behavior:  2.0 (1)	OTA:  2.17

Awards and Decorations (per DD 214):	

Period of Unauthorized Absences: 20070622 - 20080115 (207 days); Period of Confinement: NONE

NJP:  

- 20070202:	Article  (Failure to obey order or regulation) 
	Awarded:    Suspended:  

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:

	  “07JUN22-08JAN15”

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

Nondecisional Issues:  The Applicant seeks a change to characterization of his service and his reenlistment code (RE-4) in order to facilitate reenlistment.

Decisional issues: The Applicant seeks an upgrade in the characterization of his service, contending that his discharge characterization of service was inequitable, because it was based on an isolated incident, that the Applicant was young and immature, and that he could not adjust to shipboard life or the work routine.  The Applicant further contends that he suffered depression and claustrophobia, which contributed to his misconduct of record.

Decision

Date:  20111214	            	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 did not provide any additional documentation for the NDRB’s consideration or to rebut the NDRB’s presumption of regularity in governmental affairs.

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 both equity and propriety.  The Applicant’s record of service included one non-judicial punishment for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) - Failure to obey order or regulations.  Additionally, the Applicant’s service record documents a period of unauthorized absence (22 June 2007 - 14 January 2008) in violation of Article 86 (Absent without leave) of the UCMJ; this extended period of absence included being dropped from his unit rolls and being declared a deserter from the armed forces.  A Form DD-553 (Deserter or Absentee Wanted by the Armed Forces) was released to Federal, State, and Local law enforcement agencies seeking the Applicant’s apprehension and return to military custody due to his unauthorized absence in excess of 30 days.  The Applicant’s military record did not contain a copy of the separation proceedings; as such, the NDRB relied on the presumption of regularity in that the Applicant was discharged in accordance with the Naval Military Personnel Manual (MILPERSMAN) and that he was afforded all his administrative rights that pertain.  In order to warrant 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 preferred against the Applicant for referral to trial by a Special Court-Martial or above.  An unauthorized absence of 207 days is serious misconduct that warrants a punitive discharge if adjudicated and awarded at trial by Special or General Court-Martial.  The request for separation 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 - thoroughly - to include his right to consult with a qualified defense 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 further acknowledged, that if discharged with an OTH, it might deprive him of virtually all veterans benefits.

(Nondecisional Issue)  The Applicant seeks a change to characterization of his service and his reenlistment code (RE-4) in order to facilitate 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 through a recruiter during the processing of a formal application for reenlistment; 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 can make changes to reenlistment codes.  As such, this issue does not serve to provide a foundation upon which the NDRB establish relief.

(Decisional Issue)  ()  .  The Applicant contends that his discharge characterization of service was inequitable, because it is based on an isolated incident, that the Applicant was young and immature at the time, and that he could not adjust to shipboard life or the work routine.  The Applicant further contends that he suffered depression and claustrophobia, which contributed to his misconduct of record.

(Propriety)  The Applicant requested administrative separation for the good of the service - in writing - in order to avoid trial by court-martial; he consulted with, and would have been represented throughout the process, by an appropriately credentialed legal defense counsel.  The command accepted the Applicant’s request and approved it after determining it met all the specifications required; as such, the Applicant was separated properly from the Naval Service in accordance with Article 1910-106 and 1910-230 of the MILPERSMAN.  Accordingly, relief based on propriety is not warranted.

(Equity)  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 that he willingly and knowingly departed his command, without authorization, for 207 days, in direct violation of Article 86 of the UCMJ; this action resulted in his missing training, his ship’s movements, and other Sailors having to be reassigned to fill the gap he had created in the table of organization.  The Applicant’s command determined that his conduct was detrimental to the good order and discipline of the service and determined that the misconduct warranted punitive action via trial by court-martial.  Facing the punitive action of a court-martial, the Applicant requested administrative discharge, fully aware of the likely characterization of his service and narrative reason for his discharge that would be on his DD Form 214. 

The NDRB recognizes that many of our service members are young at the time they enlist for service.  While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their honorable discharges.  In fairness to those service members, commanders and separation authorities are directed to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB determined the Applicant’s personal problems were not mitigating factors to the misconduct of record.

Characterization of service at discharge is based on recognition of a Sailor’s performance and conduct and is not necessarily dependent upon the narrative reason for separation.  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.  An Under Other Than Honorable Conditions discharge, however, 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.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect an act or omission that constituted a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances.  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 summary of service,  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), 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 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