ex-HT3, USN 

Current Discharge and Applicant’s Request

Application Received:  20081222
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)	20011108 - 20020121  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020122	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080125	Highest Rank/Rate:  HT2
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  5.0 (1)	Behavior:  4.0 (1)	OTA:  4.14

Awards and Decorations (per DD 214):	     

Periods of UA/CONF:   / 20071202-20071219 (18 days)  Japanese pre-trial confinement

NJP:  
- 20080103:	Article 134 (Drunk and disorderly)
	Awarded:     Suspended:  

SCM:     SPCM:  

CC:  
- 20071220:	Offense:  Inflicting bodily injury.
	Sentence:  Fine of 300,000 Yen, (18 days of pre trial confinement in Japan).

Retention Warning Counseling:  

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:  

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

Applicant’s Issues

1.  Discharge unfair due to no previous history of violence, recreational drug use, or alcohol abuse, inadequate investigation and   
     mistaken identity. 
2.  Discharged close to EAOS.
3.  Post service conduct.

Decision

Date:  20090320		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 his discharge should be upgraded to honorable based on the following reasons: 1) he never had a history of violent behavior in the past; 2) he never used any type of recreational drugs and never had a problem with alcohol; 3) does not believe his case was investigated to the fullest extent by the Japanese authorities or his command; and 4) his commanding officer never supported him or allowed him the opportunity to explain anything at his non-judicial punishment.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service or reason for discharge if such a change is warranted.  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 service was marred by one civilian conviction for violation of Japanese Penal Code, Article 204, for inflicting bodily injury on two civilian Japanese females.  He was apprehended and was held in Japanese pretrial confinement for approximately 18 days and released to military authorities, post trial, on 20 December 2007.   On 03 January 2008 the Applicant was awarded NJP for a violation of the Uniform Code of Military Justice (UCMJ):  Article 134 (Drunk and disorderly).  The commanding officer’s letter of 14 January 2008 indicates the Applicant was a strong performer whose service was overshadowed by a serious liberty incident involving the misuse of alcohol and resulted in injuries to two Japanese civilians.  The Applicant’s discharge was deemed by the commanding officer to be consistent with Navy policy and necessary to maintain good order and discipline.
 
The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the standards of expected Navy conduct.  There is no evidence in the record or provided by the Applicant to support his contentions regarding inadequate investigation, mistaken identity, inappropriate conduct or handling of his NJP.  Additionally, the commanding officer had the discretion in deciding whether or not to convene an investigation.  Additionally, the Applicant’s prior history of alleged non involvement with alcohol and recreational drugs does not negate the misconduct of record which resulted in his separation from the Navy.

For the edification of the Applicant, 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, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  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.  The Board determined the Applicant’s misconduct was a significant negative aspect in his military record and the awarded discharge was appropriate; an upgrade would be inappropriate.  

:  ()  .  The Applicant’s further contends it was not fair to give him a general discharge because he was so close to his EAOS.  The Navy regulations permit the involuntary separation of service members 
prior to the expiration of their service obligation if they meet the requirements for separation as outlined in the MILPERSMAN.  The record reflects the Applicant was administratively discharged based on misconduct due to the commission of a serious 

offense as evidenced by his civilian conviction for inflicting bodily injury on two Japanese females and drunk and disorderly conduct.  Commission of a serious offense does not require adjudication by non-judicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the evidence of misconduct committed by the Applicant as previously discussed.  There was sufficient evidence of record to support the basis for discharge due to the commission of a serious offense.  After reviewing the Applicant's entire service record, the Board found the characterization of the Applicant's discharge as general (under honorable conditions) was equitable and consistent with the established Navy guidelines and procedures. 
 
:  ()  .   The Applicant contends he has been a good citizen since his discharge.  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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  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 statement concerning post-service conduct, without documented evidence, was found not to mitigate the misconduct, which precipitated the discharge.  The awarded discharge was appropriate, an upgrade is not warranted. 

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   

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 134 (Drunk and disorderly).

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