ex-YNSR, USN

Current Discharge and Applicant’s Request

Application Received:  20080103
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)  19970306 - 19970915  		Active:  

Period of Service Under Review:
Date of Enlistment:  19970916	   Period of Enlistment:   Years   Extension	Date of Discharge:  19980521
Length of Service:    Years    Months   06  Days	  Education Level:  	Age at Enlistment:  	AFQT:  38
Highest Rank/Rate:  YNSR	Evaluation Marks:  Performance: NFIR	Behavior: NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):  NONE

Periods of UA:  , listed as unauthorized absence on previous Decisional Document based on DD 
                          Form 214, Block 29

NJP:       SCM:       SPCM:       CC:       Retention Warnings:  

Previous ndrb document review decision

NDRB Documentary Review Conducted (date):  20060406
NDRB Documentary Review Docket Number:  ND05-01324
NDRB Documentary Review Findings:  Proper as issued and that no change warranted

Administrative Corrections to the Applicant’s DD 214

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

	  “MILPERSMAN 1910-142”

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 and/or Medical Record:  		Other Records:  
Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):  
Applicant Testified:  
Applicant Available for Questions:  
Witnesses:  
Observers:  Air Force Discharge Review Board Members

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

Applicant’s Issues

1.  Discharge too harsh for the misconduct committed.

Decision

Date:  20081103          Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

:  ()  .  The Applicant’s representative contends the discharge was wrongful and inequitable because it was too harsh for his misconduct.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record which was available for review is marred by an unauthorized absence for 20 days.  The Applicant admitted to the unauthorized absence at his NDRB personal hearing and indicated he returned after being assured by his congresswoman he would not be arrested.  After reviewing the Applicant's entire service record, the Board found the characterization of the Applicant's discharge as “Under Other Than Honorable” was equitable and consistent with the characterization of discharge given others in similar circumstances allowing for presumption on the Navy’s behalf.   

Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 company’s, or other financial institutions; 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 conduct mitigates the reason for the characterization of discharge. 

The Applicant’s post-service accomplishment as evidenced by his unofficial transcript from the University of Maryland was not sufficient to mitigate the misconduct which resulted in his discharge from the Navy.  There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge.  The Board determined the awarded discharge was appropriate 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

Dissenting opinion

Two of the Board members concurred with the Applicant’s contention that the characterization of service was too harsh based on the evidence of record.  The record reflects the Applicant served on active duty for 8 months and 6 days and was administratively discharged with an other than honorable discharge based on misconduct due to commission of a serious offense.  The only evidence of misconduct contained in the record and admitted to by the Applicant at the personal appearance hearing was a 20 day unauthorized absence which is noted on the DD-214.  Based on the lack of evidence of disciplinary action taken by the command (i.e. no NJP, courts martial or separation in lieu of court martial, the short duration of unauthorized absence and the fact that the Applicant was on active duty for less than 9 months, and post service conduct these board 

members are opined this discharge is too harsh and therefore inequitable.  Accordingly, both Board members voted to upgrade the Applicant’s characterization to “General (Under Honorable Conditions)”.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 
29 March 2000, Article 1910-142, Separation By Reason Of Misconduct - Commission of a Serious Offense.

B.  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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, Unauthorized absence over 30 days.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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