, ex- HT3, 

Current Discharge and Applicant’s Request

Application Received:  20220110
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:  COMPLETION OF REQUIRED ACTIVE SERVICE
Reentry Code change to:  REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:   	             	Active:   

Period of Service Under Review:
Date of Enlistment:  20040706	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20101104	Highest Rank/Rate:  HT3
Length of Service:  06  Year(s)  00  Month(s)  01  Day(s)
Education Level:  12	AFQT:  42
Deployment/Operation:  

Evaluation Marks (# of occasions):  Performance/Proficiency:  3.0 (6)   Behavior/Conduct:  3.0 (6)   OTA:  3.15 
Fitness Reports:  

Awards and Decorations (per DD 214):  NDSM GWOTSM HSM NAVY "E" GCM 

Periods of UA:  20100626 - 20101025, 119 days
Periods of CONF:  NONE
Time Lost per DD214:  20100626 - 20101025, 119 days

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

NJP:  1

- 20060817:	Article 92 (Failure to obey order, regulation) 
	Article 134 (General article)
	Awarded:   
	Suspended:  NONE

NDRB Documentary Review Conducted (date):  20121218
NDRB Documentary Review Docket Number:  ND12-00221
NDRB Documentary Review Findings:  Proper as issued and that no change is warranted.

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 15560D), Change 11, effective 31 May 2005 until 10 November 2021, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his discharge is inequitable based on the totality of his service.
2.	The Applicant contends his discharge is improper because it stems from an administrative error.

Discussion

Date:  20220802		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 92 (Failure to obey order, regulation)
Article 134 (General article)

:  The Applicant contends his discharge is inequitable based on the totality of his service and his discharge is improper because it stems from an administrative error.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.

While the NDRB acknowledges and respects the totality of the Applicant’s service to his country and the Navy, the burden of overcoming the presumption of government regularity in this case was not met by the Applicant during his hearing and through supplemental documentation submitted with his DD Form 293.  The Applicant was stationed aboard the USS T_ and told the Board that he deployed with the carrier in early 2010.  The Applicant was flown from the carrier back to Norfolk, VA in June, 2010 and believed when he left his ship he had been separated from the Navy for fulfilling his service contract, and had no other service obligations aboard Naval Station Norfolk.  Thus, the Applicant moved from the Norfolk area back home to Ohio.

The Board found numerous issues with his statements.  When a Sailor is separated at the end of their service contract, or administratively separated (ADSEP) due to misconduct, from a deployed ship, they are issued orders and sent to a transient personnel unit (TPU) stateside.  After checking into their TPU, the servicemember completes any remaining separation requirements (final physical, separation classes, etc.), is issued orders as applicable, and is given their DD-214, which is signed by the issuing authority and the servicemember.  While the Applicant did not provide the NDRB a copy of his orders, the Board had reason to believe he was issued permanent change of station (PCS) orders by the USS T_’s administrative department to TPU Norfolk, and not terminal leave and separation orders.  This is supported by his July 2010 Leave and Earnings Statement, which indicated PCS orders were issued and dated 28 June 2010.  Additionally, the Applicant’s history of assignments noted he was transferred from the USS T to TPU Norfolk on 28 June 2010.  While the Applicant acknowledged he had completed his final physical aboard the carrier while deployed, he told the Board during his hearing he had not yet completed his separation classes, which would have been done stateside and not aboard the carrier.  Separation classes must be completed by all servicemembers regardless of time in service or rank, and are routinely held on military installations.  The Board also found it highly unlikely the Applicant’s administrative department did not thoroughly walk him through all of his travel and administrative requirements, given the complex nature of executing PCS orders back to the states while deployed in the Middle East.  The Applicant would have also been required to file a travel claim for his travel back to Norfolk, and would have received paid travel benefits for his travels from Norfolk to Ohio during his separation process.  There is no indication that travel claims were filed for either movement.  In fact, documentation from the Department 

of the Treasury dated 10 January 2013, indicated the Applicant had a past due balance of $1,200.30 on his government issued travel credit card, which the Board concluded were incurred for his travel from Bahrain to Norfolk – airline ticket, hotel charges, food, etc.

After failing to check in with TPU Norfolk, the Applicant was put into an unauthorized absence (UA) status on 26 June 2010 and was ultimately declared a deserter on 30 July 2010.  The Applicant returned to TPU Norfolk on 26 Oct 2010 where ADSEP proceedings began.  The Applicant was eventually separated in lieu of trial by court-martial with an Under Other Than Honorable Conditions (UOTHC) discharge.  The Board found it highly unlikely his discharge would have been so punitive in nature if this was simply an administrative error by his command.  Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement.  They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be UOTHC, which might deprive them of virtually all veterans benefits based upon their current enlistment.

While the Applicant provided the NDRB with a DD-214 that indicated he had been separated from the Navy with an Honorable characterization of service for the completion of his required active service obligation, the Board determined this was not his final DD-214.  First, the USS T_ would not have issued his final DD-214 because the ship was deployed.  This would have been issued from TPU Norfolk, but the Applicant never checked into this unit.  Second, the DD-214 provided was not signed by the issuing authority or the Applicant.  If a service member is not available to sign their DD-214 upon separation (confinement, UA status, etc.), the DD-214 will indicate that the servicemember was not available for signature.  That was not the case in the Applicant’s situation.  Finally, the Board found it extremely unlikely the Applicant would have been given the opportunity to travel on funded orders back to the USS TRUMAN, which was still deployed and for which was no longer his unit, to track down the person who issued his Honorable DD-214.  It should not have been problematic for anyone at TPU to reach out to this individual, or any administrative personnel aboard the carrier, via email or telephone to inquire into why he was issued this DD-214.

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  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 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. 

In this case, the Applicant failed to check into TPU Norfolk after traveling back to the states on PCS orders from the USS T_, which was deployed.  He was declared a deserter and ultimately ADSEP’d after spending 119 days in an UA status.  The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  Relief denied.

The Board appreciated the totality of the Applicant’s service, but found no impropriety or inequity in this case.  Further, the NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  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.  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,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN 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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.