ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20080602
Characterization of Service Received: OTHER THAN HONORABLE
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)	20030613 - 20030728  		Active:   

Period of Service Under Review:
Date of Enlistment: 20030729	Period of Enlistment:  Years   Extension	Date of Discharge: 20041227
Length of Service:  Years     Months  08 Days	Education Level: 	Age at Enlistment: 	AFQT: 70
Highest Rank/Rate: 	AA	Evaluation Marks: Performance:	NFIR	Behavior: NFIR	OTA: NFIR
Awards and Decorations (per DD 214):	NDSM

NJP:  
- 20041122:  Article 86 (UA, absent from 20040902-20040923).
                     Article 121 (Larceny), 2 specifications:
	- Specification 1: (Larceny of checks).
	- Specification 2: (Larceny of currency - $106.07).
                     Article 123 (Forgery), 3 specifications
                     Awarded:     Suspended:  

SCM:     SPCM:     CC:     Retention Warnings:  

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    
              Other Documentation (Describe): 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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:  Articles 121 and Article 123.

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

Applicant’s Issues

1.  In-service performance.
2.  Personal problems.
3.  Post service conduct.
Decision

Date:  20090409		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  ()  . The Applicant contends her “Other Than Honorable Discharge” was not justifiable and should be upgraded based on in-service performance as evidenced by her very high evaluation marks.  The NDRB noted her performance evaluations were not found in the record.  The Applicant also assumed she had a “General (Under Honorable Conditions)” discharge until she did some research which indicated she did not.  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 of service was marred by one NJP on 22 November 2004 for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA, 21 days); Article 121 (Larceny), 2 specifications; and Article 123 (Forgery), 3 specifications.  Based upon available records, there is no indication the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion the Applicant committed a serious offense and that separation from military service was appropriate with the awarded discharge characterization of “Under Other Than Honorable Conditions”.  The NDRB determined an upgrade would not be appropriate based only on the remarks of the Applicant indicating she had very high evaluation marks.  

In regard to the Applicant’s assumption she had a “General (Under Honorable Conditions)” discharge, per the Administrative Separation Processing Notice of 22 November 2004, the Applicant was notified of administrative separation due to a personality disorder and misconduct due to the Commission of a Serious Offense (COSO) with the least favorable characterization of discharge possible being an “Under Other Than Honorable Conditions”.  The Applicant waived all of her rights pertaining to administrative separations with the exception of copies of the documents being forwarded to the separation authority and was subsequently discharged based on misconduct (COSO).  Furthermore, the DD Form 214 signed by the Applicant (former last name Lafitte), denotes “Other Than Honorable” in Block #24, as the character of service.  Based on the evidence of record the Applicant had sufficient notice and should have known her discharge was characterized as “Under Other Than Honorable”.  The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate. 

: ()     The Applicant also contends while stationed in Virginia she had the most trying time of her life because of personal problems brought about by her abusive alcoholic husband and a psycho roommate.  However, the Applicant provides no documented information she informed her chain of command of family problems and did not receive the assistance, leave, or help she asked for.  Additionally, the Applicant makes no mention of, nor provides documented proof, if she attempted to use any one of the numerous family support programs sponsored by or for military service members.  These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need.  The NDRB determined these issues were without merit and the awarded discharge characterization was appropriate; an upgrade would be inappropriate. 

:  ()     The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be 

upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 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 companies, 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

In regard to post service conduct, the Applicant contends she will be graduating from Southern Arkansas University on 9 May 2009 with a Bachelor of Science and has been accepted at West Texas A&M Master’s Degree Program.  She has submitted transcripts from Southern Arkansas University for the Board’s consideration.  The Board applauds the Applicant for her academic accomplishments.  However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance.  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

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 

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