Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Roberts, James A CIV SECNAVCORB, NDRB
Company: NCPB

Docket No. ND15-01540

ex- CSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20150827
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:  (corrected) MILPERSMAN 1910-106 [IN LIEU OF TRIAL BY COURT-MARTIAL] 

Applicant’s Request:	Characterization change to:	HONORABLE
Narrative Reason change to: SECRETARIAL AUTHORITY
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	NONE 	            	Active:	NONE 

Period of Service Under Review:
Date of Enlistment:  20060602	Age at Enlistment:  26
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20070726	Highest Rank/Rate:  CSSA	
Length of Service:  01 Year(s)   01  Month(s)   25 Day(s)
Education Level:  12	AFQT:  42

Evaluation Marks (# of occasions):  Performance/Proficiency: NFIR   Behavior/Conduct: NFIR   OTA: NFIR     
Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):	NDSM GWOTSM 

Period of UA:  20070305 - 20070423, 49 days
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  NONE  SCM:  NONE SPCM:  NONE CIVIL ARREST:  NONE CC:  NONE  Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20120503
NDRB Documentary Review Docket Number:	ND11-00844
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	Block 25, Separation Authority, should read: “MILPERSMAN 1910-106”
	
The NDRB will recommend to the Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:	☒	Service/Medical Record:	☒	Other Records:	☐
	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:	☐
 
Types of Witnesses Who Testified

	Expert:  ☐			Character:  ☐  

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

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.

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

Applicant’s Issues

1.	The Applicant contends that he went UA for his son’s safety which is a mitigating circumstance for going UA for 49 days.

Discussion

Date:  20161114	HEARING	Location:  WASHINGTON D.C.	Representation:  NONE

The Naval Discharge Review Board (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.  Although the Applicant submitted ten issues in writing on his DD 293, the Applicant in person at his personal hearing, updated his DD 293 (Statement of Issues) to reflect one issue.  However, the Board did complete a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant’s record of service included no Retention Warning Counseling and no misconduct resulting in nonjudicial punishment or court-martial.

Based on the offense committed by the Applicant, the command administratively processed the Applicant for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board. Due to the non-availability of documentation, NDRB presumed it was the Article 86 violation that was referred to a Special Court-Martial.  The narrative reason for separation on the Applicant DD Form 214 indicates he requested separation rather than face trial by court-martial.  To obtain approval for separation in lieu of trail, an Applicant must acknowledge that his counsel fully explained the elements of the offense for which he was charged and acknowledge that he was guilty of the offense.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions which might deprive him of virtually all veterans benefits based upon his current enlistment.

Issue 1:  The Applicant contends that he went UA for his son’s safety which is a mitigating circumstance for going UA for 49 days. The Applicant contends his disciplinary problems (UA for 49 days) were the result of stress caused by a family situation (son’s safety).  The Applicant contends the characterization of his discharge should be upgraded because he suffered a lot of setbacks due to his family situation and son’s health and safety.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  Although the Applicant did present medical treatment records for his son and was seen by Medical provider, the NDRB did not find it as a mitigating factor for the length time (49 days) of Unauthorized Absence.  There was no evidence in the record that the Applicant attempted to use other services available such as Navy Chaplain, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s family situations were not mitigating factors in his misconduct. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  
Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL with a corresponding separation code of KFS, and the reentry code shall remain RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water