ex-ICFR, USN

Current Discharge and Applicant’s Request

Application Received: 20090312
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)	20071208 - 20080118  	Active:	

Period of Service Under Review:
Date of Enlistment:  20080119	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20081209	Highest Rank/Rate:  ICFA
Length of Service:   Year(s)     Month(s)   11 Day(s)
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  1.0 (1)	Behavior:  1.0 (1)	OTA:  1.17

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  NFIR [Awarded CONF on 20081106 at SCM for 30 days]

NJP:  
- 20080612:	Article 95 (Resisting apprehension)
	Article 128 (Assault)
	Article 134 (Communicating a threat -2 specifications) 
		Awarded:     Suspended:  

SCM:  
- 20081106:	Article 128 (Assault -2 specifications)
	Article 134 (Disorderly conduct, drunkenness)
		Sentence:   

SPCM:            CC:  

Retention Warning Counseling: 1
-20080612:	For NJP for violations of Articles 95, 128, and 134.

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 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 violations of the UCMJ, Article 95 (Resisting apprehension), Article 128 (Assault), Article 134 (Communicating a threat) and Article 134 (Disorderly conduct, drunkenness).

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

Applicant’s Issues

1.  Reenlistment opportunities 
2.  Personal issues

Decision

Date:  20090820	       Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COMMISSION OF A SERIOUS OFFENSE.

Discussion

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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  The Applicant’s record of service is marred by a retention warning, an NJP and a Summary Court-Martial conviction for violations of the Uniform Code of Military Justice, Article 95 (Resisting apprehension), Article 128 (Assault), Article 134 (Communicating a threat) and Article 134 (Disorderly conduct, drunkenness).  In addition, the Applicant went into an unauthorized absence following his release from confinement (Awarded 30 days confinement on 20081106 at SCM), which resulted in him being discharged in absentia from the Navy.  These violations are considered serious offenses, punishable by punitive discharge if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge, but opted instead for administrative discharge.  The Applicant was notified of the two reasons for his administrative separation; pattern of misconduct and commission of a serious offense.  The Applicant waived his rights to consult with counsel and waived his opportunity for an Administrative Separation Board.  Ultimately, the Applicant was administratively discharge (in absentia) with an Under Other Than Honorable Conditions characterization due to commission of a serious offense. 

:  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other service of the Armed Forces, nor is the NDRB is not authorized to change a reenlistment code.    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant contends his misconduct was the result of personal issues that he internalized vice seeking command help to resolve.  The Applicant states that he had fathered a child out of wedlock while he was at “A” school.  Upon finishing “A” school, the Applicant says he went home to conduct a paternity test to confirm the child was his.  Upon discovering that he was the biological father of the child, he became excited. A month later, the Applicant became very concerned about his son, who had been taken away from the biological mother and placed in foster care.  Thus, the Applicant claims this hardship and sense of confusion was the beginning of his downhill slide in performance, which resulted in his discharged.  If the Applicant would have asked for help from the command, much of his concerns may have been averted early in the process.  In the Board’s opinion, the Applicant’s misconduct was unrelated to the concerns at hand.  If the Applicant did seek help, he provides no evidence that he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for.  Additionally, the Applicant makes no mention of nor provides documented proof that he attempted to use any one of the numerous family support programs 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 found that the Applicant's service was equitably characterized.  Relief denied.

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; attending or completion of higher education (official transcripts) 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 addition to the Applicant’s statement on the DD Form 293, he provided a character reference from his father, who served honorably in the Army for 24 years, as evidence on his behalf.  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 that provision of these items alone does not guarantee an upgrade.  By a majority vote of 5-0, the Board determined the characterization of service received, “Under Other Than Honorable Conditions,” and the narrative reason for the discharge; “Commission of a Serious Offense,” shall remain as issued considering the length of service and the UCMJ violations involved.

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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 NDRB 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