ex-SKSR, USN 

Current Discharge and Applicant’s Request

Application Received: 20090107
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)	20000822 - 20000829  	Active:	

Period of Service Under Review:
Date of Enlistment:  20000830	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040803	Highest Rank/Rate:  SKSN
Length of Service:   Year(s)     Month(s)   4 Day(s)
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  UA:  NONE 
                                      CONF:  61 days, 20040415-20040614

NJP:    SCM:  NONE   CC:     Retention Warning Counseling:  

SPCM:  
- 20040415:	Article 128 (Assault consummated by a battery)
	Article 134 (Communicating a threat)
                       Sentence:   61 days, 20040415-20040614  

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.  Not given the right for a review board.
2.  Command did not provide a lawyer for the Applicant to contact.
3.  Signed paper work under duress.
4.  Believes most service members who waive a review board receive a General (Under Honorable Conditions) discharge.

Decision

Date:  20090326		Location:  Washington D.C.	Representation:  

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

Discussion

Issue 1:  ()  .  The Applicant contends he was not given the right to a review board, was not assigned counsel, and he signed all paper work under duress.  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 SPCM for violation of the Uniform Code of Military Justice (UCMJ):  Article 128 (Assault consummated by a battery) and Article 134 (Communicating a threat).  Pursuant to MILPERSMAN 1910-142, members may be separated based on commission of a serious military offense when specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge per the Manual for Court Martial (MCM), Appendix 12 for the same or closely related offenses.  Violation of Article 128 represents the commission of a serious offense and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant was made the subject of a SPCM but did not receive a punitive discharge.

In regards to the Applicant’s contention he was not given the right to a review board, the record of evidence, which contains an administrative separation notice dated 28 June 2004, indicates the Applicant was notified of his administrative rights including the right to an Administrative Separation Board.  On 29 June 2004 the Applicant acknowledges receipt of the notice of his rights and he elected for an Administrative Separation Board.  However, 22 days later the Applicant came back and initialed to waive his right for an Administrative Separation Board.  Base on this reverse decision, the NDRB determined the Applicant’s contention had no merit.  The NDRB determined an upgrade based on this issue would be inappropriate.
 
Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant also claims he was not provided a lawyer.  In reviewing the discharge procedures, pursuant to the administrative separation notice of 28 June 2004, the Applicant was notified of his right to consult with counsel and he elected to see counsel.  A reference letter provided by the Applicant from his senior non-commissioned officer states the Applicant had a military lawyer at his SPCM.  This statement clearly refutes the Applicant’s claim he was not provided a lawyer.  The Applicant provided no documented evidence he did not have the opportunity to speak with counsel.  It would have been highly unlikely the SPCM would have proceeded without the Applicant having a lawyer present and all evidence indicates one was present.   The NDRB determined the claim was without merit and an upgrade based on this issue would be inappropriate. 

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he signed his paperwork under a threat of having no free time and therefore he was under duress.  While the NDRB understands being referred to a SPCM for serious charges which could have resulted in confinement and a punitive discharge would cause stress to anyone, there is no evidence in the record or provided by the Applicant to support the contention he signed any papers under duress.  Any stress involved was clearly based on the Applicant’s own misconduct and nothing in the service record indicates or reveals undue pressure was applied to the Applicant to force him to sign any paperwork he did not want to sign.  Additionally, the Applicant had counsel to whom he could discussed any perceived 

threats or duress he was under prior to signing paperwork.   The NDRB determined this issue was also without merit and an upgrade based on this would be inappropriate.    

Issue 4: ()  .   The Applicant implies his discharge was inequitable because another service member was punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  
Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service.  Based upon available records, nothing indicates 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 serious offenses and that separation from naval service was appropriate and a “General (Under Honorable Conditions)” discharge was warranted.   The NDRB determined an upgrade would be inappropriate in the Applicant’s case; his misconduct was not indicative of conduct expected from U. S. Sailor’s in receipt of an “Honorable” discharge.   

For the edification of the Applicant, 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.

Besides the DD Form 293, the Applicant submitted one reference letter. The NDRB determined this reference was not sufficient to warrant an upgrade.   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 feel his post-service conduct becomes substantial enough to warrant 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 

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:  Article 128 (Assault consummated by a battery) and Article 134 (Communicating a threat).

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