ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20080819
Characterization of Service Received:  
Narrative Reason for Discharge:   (SERIOUS OFFENSE)
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20010405 - 20010411  		Active:  

Period of Service Under Review:
Date of Enlistment: 20010412	 Period of Enlistment:  Years   Extension	Date of Discharge: 20050928
Length of Service:  Years     Months   17 Days	Education Level: 	Age at Enlistment: 
AFQT: 70    Highest Rank/Rate: 	HM3     Evaluation Marks:  Performance:  3.5 (7)      Behavior:  3.0 (7)	   OTA:  3.34
Awards and Decorations (per DD 214):      ICM  (W/1 BRONZE STAR)  CAR

Periods of UA/CONF:      SCM:      CC:      Retention Warnings:  

NJP:  
- 20010920:  Article 92 (Disobeying a lawful general regulation)
                     Awarded:      ORALLY      Suspended:  

SPCM:  
- 20050824:  Article 81 (Conspiracy).
                     Article 90 (Disobey a superior commissioned officer)
                     Article 112a (Drug use), 2 specifications:
		Specification 1:  Wrongful possession of a controlled substance.
		Specification 2:  Disobey lawful command.  (According to SPCM record)
                     Sentence:  (20050825-20050916 (23 days)) 

				Administrative Corrections to the Applicant’s DD 214

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

	  “BILLINGS, DERRICK WAYNE”

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/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:    

Related to Post-Service Period (cont):

              Other Documentation (Describe): 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 80, Article 90, and Article 112a.

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

Applicant’s Issues

1.  Access to treatment for injuries sustained in combat.
2.  Isolated incident of misconduct.
3.  Positive recommendations from others to continue to serve.
4.  Administrative separation board convened for “Drug Abuse”, but discharge is for “Commission of a Serious Offense.”
5.  Only guilty when “E & S” was applied.
6.  Found not guilty to “wrongfully receiving Valium”, but guilty to being in “wrongful possession” of Valium.
7.  Technical errors in trial paperwork and DD-214
8.  Considered “promotable” even after misconduct.
9.  Remained deployed in Iraq after misconduct.
10.  Record of service.

Decision

Date:  20081204		Location:  Washington D.C.	Representation:  

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

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .  

The NDRB advises the Applicant he may be entitled to treatment provided by the Department of Veteran’s Affairs (DVA) for service-connected conditions regardless of discharge characterization of service.  The Applicant is directed to the DVA website at http://www.va.gov/healtheligibility for detailed information.

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his isolated incident of 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 of service was marred by one NJP and one SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 81 (Conspiracy); Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer); Article 92 (Disobeying a general order); and Article 112a (Wrongful use or possession of a controlled substance). Violations of these Articles are considered serious offenses, punishable by a punitive discharge and confinement if adjudicated and awarded by a special or general court-martial.  For the edification of the Applicant, despite a Sailor’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.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  

The Applicant has requested an upgrade to his discharge characterization to “Honorable”.  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 warranted when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a Sailor. The record indicates the Applicant was made subject to an NJP and a SPCM.  Furthermore, the SPCM represented 

violations of 3 Articles of the UCMJ.  Based on the numerous incidents of documented misconduct contained in the service record the NDRB determined an upgrade founded upon an isolated incident of misconduct would be inappropriate.

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to numerous favorable reference letters written to the Military Judge presiding at his SPCM recommending retention in the Navy.  While the Applicant may have had favorable letters on his behalf submitted during his SPCM, these were taking into account during his court-martial.  Although the Applicant was not sentenced to a punitive discharge at his SPCM, there is nothing which precluded the command from processing the Applicant for an administrative separation after his SPCM as the decision to pursue an administrative separation rests solely with the Applicant’s commanding officer.  For the edification of the Applicant, the Military Judge presiding during a court martial and commanding officer’s may solicit and consider the recommendations of others, but they are under no obligation to adhere to those recommendations.  The NDRB rejects the Applicant’s petition he warrants an upgrade because favorable reference letters were submitted on his behalf during his court-martial.  The NDRB found no evidence the Applicant’s commanding officer acted improperly or inequitably in pursuing an administrative discharge, even in light of favorable letters on the Applicant’s behalf.  The Board determined the awarded discharge characterization was appropriate. 

Issue 4:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his narrative reason being “Commission of a Serious Offense” and his administrative separation board considered separation for “Drug abuse.”  The record of evidence shows the Applicant waived his rights to an administrative separation board on 19 September 2005.  Furthermore, the separation code directed by the Chief of Naval Personnel (HKQ) implies the Applicant waived his administrative separation board.  The NDRB also noted the discharge notification acknowledged by the Applicant on 19 September 2005 clearly states the reason for processing as “Commission of a Serious Offense”.  The NDRB rejects the Applicant’s contention as it is refuted by the basic facts of the discharge process.  The Board determined the awarded discharge characterization was appropriate. 

Issue 5:  ()  .  The Applicant contends he is entitled to a discharge upgrade because the findings at his SPCM to Articles 80 and 112a are listed as “Guilty by Exceptions & Substitutions”.   This implies an administrative change to the exact wording contained in the specifications of violations of the UCMJ, not a change in the actual charges against the defendant.  The NDRB rejects the Applicant’s contention this implies he is anything less than guilty. The Board determined the awarded discharge characterization was appropriate. 

Issue 6:  ()  .  The Applicant contends he is entitled to a discharge upgrade because he was found “Not Guilty” to wrongful receipt of Valium and therefore he should also not be guilty of wrongful possession of Valium.  The NDRB again rejects the Applicant’s contention because he pleaded guilty to possession of Valium.  If the Applicant believed the charge against him to be false at the time of trial, he should have pleaded “not guilty” and forced the government to prove he was guilty.  Again, the Board determined the awarded discharge characterization was appropriate. 

Issue 7:  ()  .  The Applicant contends he is entitled to a discharge upgrade because administrative errors were made on his DD-214 and on papers related to his court-martial.  Again, the NDRB rejects the Applicant’s contention this is a sufficient basis to upgrade his discharge.  The minor administrative errors contained on the DD-214 do not negate the discharge characterization.  The NDRB has recommended the Chief of Naval Personnel make the appropriate corrections to the DD-214.

Issue 8-10:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his record of service.  Specifically, he contends his continued service in a combat theater, continued recommendations for promotion subsequent to his SPCM, and the fact the sentence awarded at his SPCM did not include a Bad Conduct Discharge, all justify an upgrade in his discharge characterization.  While the specific details of the Applicant’s contentions appear to be confirmed by the record of evidence, the Applicant’s command determined his offenses were still serious enough to warrant an administrative separation.  For the continued edification of the Applicant, an administrative separation is not punitive in nature.  Administrative separations are used to separate service member determined by their command’s to be unfit for further military service.  In the Applicant’s case, his conviction at SPCM for conspiracy, disobedience to a commissioned officer, and wrongful possession of a controlled substance provided sufficient grounds for the command to seek an administrative separation, in spite of the record of service demonstrated by the Applicant.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.  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