ex- SN, 

Current Discharge and Applicant’s Request

Application Received: 20160720
Characterization of Service Received:   
Narrative Reason for Discharge:   IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:   MILPERSMAN 1910-106 [IN LIEU OF TRIAL BY COURT-MARTIAL] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  19980702	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20010726	Highest Rank/Rate:  SN
Length of Service:
Inactive:     Year(s)     Month(s)   02 Day(s)
Active:       Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  42

Evaluation Marks (# of occasions):  Performance/Proficiency: 1.8 (5)   Behavior/Conduct: 2.5 (5)   OTA: 2.13 
Fitness Reports: 

Awards and Decorations (per DD 214):	SSDR NUC KCM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20010407 - 20010613, 67 days

NJP:  

- 20010127:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 92 (Failure to obey order, regulation)
	Awarded:       Suspended:     

SCM:    SPCM:    CIVIL ARREST:    CC:     Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20120517
NDRB Documentary Review Docket Number:	ND11-00974
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:

	  “AN”
	  “Airman Apprentice School”
	  “MILPERSMAN 1910-106”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps 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 29, effective 11 July 2000 until 
21 August 2002, 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)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant desires an upgrade to his discharge characterization in order to apply for the Washington DC Metro Transit Police Department.
2.	The Applicant believes his discharge characterization was inequitable in that his decision to go UA reflected his youth and immaturity while his post-service conduct better exemplifies his true character.
3.	The Applicant contends his discharge characterization is inequitable as his misconduct was the result of him experiencing racism and hazing during his time in Service, and these should be considered mitigating factors.

Discussion

Date:  20170613		Location:  WASHINGTON D.C.	Representation:  

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.  The Board completed 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:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
Article 92 (Failure to obey order, regulation)

 , Special Court-Martial, or Civil Convictions 

The Applicant went on Unauthorized Absence beginning in April 2001 for 67 days.  He turned himself in to authorities at Norfolk Naval Station after urging by his mother.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not he waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority Review.  Per his recollection and corroborated by his narrative reason for discharge, he was offered the opportunity to request Separation in Lieu of Trial by Courts-Martial and he did so.

Issues 1 and 2:  The Applicant desires an upgrade to his discharge characterization in order to apply for the Washington DC Metro Transit Police Department.  Further, he believes his discharge characterization was inequitable in that his decision to go UA reflected his youth and immaturity while his post-service conduct better exemplifies his true character.

In the intervening years since his discharge, the Applicant has had numerous jobs, usually working multiple part-time jobs simultaneously.  He continues to live at home with his ailing mother, tending to the household chores and supporting them both financially.  He testified that his discharge characterization made it difficult for him to find fulltime employment.  With his current job as a bus driver for Washington DC’s Metro Transit, he was not asked about military service and did not volunteer this information, and now he has fulltime work.  He reports not being let go from any jobs.  When he has left jobs in pursuit of higher pay or more interesting work, he has always given proper two weeks’ notice.  He expressed regret for running away from the Navy when he found the circumstances surrounding his work too stressful.  He has had no problems with law enforcement.  The Applicant submitted numerous letters of recommendation from neighbors, friends, old shipmates, government workers, and employers each testifying to [redacted]’s character.

The NDRB has no authority to upgrade a discharge characterization for the sole purpose of facilitating the pursuit of employment.   Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. 

However, the NDRB determined that circumstances around his NJP were minor in nature and his UA period of 67 days, while not minor in its duration, had mitigating circumstances, as discussed below.  This Applicant did step forward and offer to serve his nation in a time of war; he further deployed to sea in support of Kosovo operations.  Relief granted.

Issue 3:  The Applicant contends his discharge characterization is inequitable as his misconduct was the result of him experiencing racism and hazing during his time in Service, and these should be considered mitigating factors.

The Applicant described to the Board in writing and in testimony the difficult time he had adapting to life at CVW-8, in large part due to the influence of a Master Chief – and then echoed by his Maintenance Division Chief – who established an unpleasant work environment for the Applicant by making frequent racist and/or ethnically demeaning comments such as allusions to the Applicant, a native of Jamaica who was raised in Maryland, coming to the USA on a “banana boat.”  The Applicant contends that he was assigned the more undesirable tasks in the shop, as opposed to the Caucasian airmen.  The Applicant also believed that some of this inequitable treatment was due to his questioning the legality of being told to use his personal vehicle for a work errand; that is, he alleges he suffered from retaliatory hazing.

He described to the board his experiences with seeking help.  He reports he was afraid to go above his Chief in his chain of command – to his Master Chief, the CMC, or his officers – as he was afraid of retaliation in the form of further harassment from his Chief.  He was unaware of his right to request Mast and of the informal and formal processes for Equal Opportunity dispute resolution.  Instead, he spoke with the unit’s YNC and the chaplain.  The former advised him “to keep his nose clean” and deferred becoming involved.  The Chaplain told him to pray on the situation.

While the Board typically relies on the assumption of regularity of government affairs, certain inconsistencies and administrative errors exist in the Applicant’s file to do so fully in this case.  First, he received two adverse evaluations in 1999, both covering the time period of October 1998 to January 2001 which is improper, with the second evaluation extending to July; they both cited the same removal from flight deck control responsibilities during the November 1998 COMTUEX and the need to place him “in a less demanding position.”  Given he was only a few weeks out of A-school, it seems harsh to rely on him heavily during that time, and especially to cite this difficulty twice.

His later evals further suggest an incongruence that is inexplicable between boxes 29 and 43.  He was designated as the “Board Writer” while on deployment, inputting updates to the ISIS system and keeping the status board current regarding all aircraft.  This is a job that requires diligence and attention to detail, and the airman selected for this duty works hand-in-hand with the Air Boss.  An airman who is lazy, prone to error, sullen, or disrespectful would not be assigned or allowed to remain in such a position.  Other administrative mistakes include:  his rank and school information on his DD-214 are in error and his Personnel Qualification Standards are not recorded chronologically.

There is no record of Retention Warning Counselings or of his NJP.  The only documentation of his NJP is on his March 2001 evaluation and on his Awards sheet; while NJP is often recorded on an Awards sheet as the day the term for the Good Conduct Medal commences, it is highly unusual to record the specific charges thereon, which are on the Applicant’s sheet.  The awards sheet states the NJP was held on 27 January 2001, which falls within the period covered by his March 2001 evaluation.  However, the Applicant firmly recalls that he was awarded 30 days restriction for his NJP that extended into the time his ship returned from deployment; this would be around September 1999, and his TAD to VF-14 began shortly thereafter as a period of remediation.  There is no record of NJP in September 1999, but restriction could not be awarded without that occurring.  The Applicant denies NJP occurring twice, and there is no evidence that this occurred.  Based on his testimony and the administrative errors in the record, the Board finds it possible that his NJP was not properly documented when it actually occurred.

The Applicant further professes his astonishment at the negative March 2001 evaluation.  He had been working hard at improving his skillset, having made Plane Captain and assigned junior personnel to teach.  When faced with this evaluation, he felt he had no chance to succeed or contribute positively within CVW-8; he left Norfolk and returned to his mother’s home.  At her urging, he then turned himself in and was subsequently processed out.  

When deliberating this issue, the Board considered the particular command climate typical of the aviation maintenance community at the time of the Applicant’s service, the Applicant’s description of a top-down atmosphere that did not embrace diversity, the Applicant’s clear improvement in conduct and achievements when TAD from CVW-8, the potential of retaliatory hazing related to the personal vehicle use issue, the Applicant’s unsuccessful efforts to seek help and guidance, and the testimonies within the letters of recommendation regarding the Applicant’s work ethic and character.  In totality, the Board found some credence that the Applicant was either subjectively or objectively in a Command environment that influenced both his decision to abandon his duties and his decision to agree to a SILT so readily.  Thus, the NDRB found mitigation was warranted on this issue.  Relief granted.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found ..  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  IN LIEU OF TRIAL BY COURT MARTIAL with a corresponding separation code of KFS, and the reentry code shall  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: 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.