ex-SA, USN

Current Discharge and Applicant’s Request

Application Received:  20080731
Characterization of Service Received:  
Narrative Reason for Discharge:  (COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20031031 – 20040504  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040505	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060105	Highest Rank/Rate:  SN
Length of Service:   Year   08  Months   01 Day
Education Level:  12	AFQT:  31
Evaluation Marks:  Performance:  NFIR               Behavior:  NFIR           OTA:  NFIR

Awards and Decorations (per DD 214): , BATTLE “E: RIBBON,

Periods of UA/CONF:      SCM:      SPCM:      CC:      Retention Warning Counseling:  

NJP:  
- 20051108:  Article 117 (Provoking speeches and gestures)
                     Article 128 (Assault consummated by a battery)
                     Article 92 (Failure to obey an order or regulation)
                     Article 80 (Attempts)
                     Awarded:      Suspended:  

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:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92- Failure to obey an order or regulation,  Article 117 – Provoking speeches and gestures, and Article 128 – Assault consummated by a battery.

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

Applicant’s Issues

1. Discharge unfair based on:  One isolated incident in 20 months of service;  he warned his master chief and commanding officer of a possible altercation with another sailor if they were not separated; and he was unaware he agreed to an “Under Other Than Honorable” discharge.  
2.  Post service conduct.
Decision

Date:  20081113		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 contends the characterization of his discharge should be upgraded because the separation was based on one isolated incident in 20 months of service and he had already warned his commanding officer and master chief something might happen if he and another sailor were not separated.  He further contends he was not aware he was agreeing to an “Other Than Honorable Discharge”.  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.  Despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by an award of NJP for violations of the Uniform Code of Military Justice (UCMJ):  Article 80 (Attempts), Article 92 (Failure to obey an order), Article 117 (Provoking speeches and gestures) and Article 128 (Assault consummated by a battery).  Even though the Applicant only had one NJP on his record, evidence indicates he committed several offenses in violation of the UCMJ.  Therefore, his statement that it was an isolated incident lacks merit.  

The Applicant contention his discharge should be upgraded because he asked the commanding officer and master chief to separate him from the sailor that he assaulted is without merit.  The medical records reflect the Applicant underwent a psychiatric evaluation 6 October 2006, and had developed a three month history of extensive rumination and plans to shoot and kill his shipmate.  However, the provider found the Applicant fit for duty and recommended his conflicts with his shipmate be handled by the chain of command.   The record reflects that the chain of command did hold the Applicant accountable by punishing him at NJP and issuing a military barring order on 8 November 2005, directing him to refrain from approaching or contacting the other sailor physically or verbally.  The fact that he asked his chain of command to separate him from the other sailor whom he assaulted does not serve as a defense or excuse for his misconduct.  The record reflects the Applicant was responsible for his actions and should be held accountable.  

In regard to the contention that the Applicant did not know he was agreeing to an “Under Other Than Honorable” discharge, the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command failed to notify him that he could receive an “Under Other Than Honorable” discharge.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

The Applicant has requested an upgrade in his discharge characterization to “Honorable”.  For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.   The Applicant’s misconduct represents a significant departure from the conduct expected from a U. S. Sailor.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ()  .  The Applicant has submitted documentation of post service conduct in support of his request for an upgrade.  However, 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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  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.

The Board found the Applicant had submitted credible evidence indicative of good post-service conduct and commends the Applicant’s apparent rehabilitative success to date.  However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined the post service documentation provided was not enough to mitigate the Applicant’s misconduct was on active duty.  The Board determined the awarded discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and an upgrade would not be appropriate at this time.

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 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 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