ex-SR, USN 

Current Discharge and Applicant’s Request

Application Received: 20090319
Characterization of Service Received:  
Narrative Reason for Discharge:  DUE TO 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)	19940727 - 19940928  	Active:	

Period of Service Under Review:
Date of Enlistment:  19940929	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970804	Highest Rank/Rate:  SA
Length of Service:   Year(s)     Month(s)   06 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  2.7 (4)	Behavior:  1.5 (4)	OTA:  2.62

Awards and Decorations (per DD 214):	

Periods of UA/CONF:  

NJP:  
- 19951227:	Article 111 (Drunken or reckless driving)
	Awarded:     Suspended:  

- 19970522:	Article 92 (Fail to obey a lawful general order)
	Article 112a (Wrongfully use marijuana)
	Awarded:      Suspended:  

SCM:  	SPCM:  

CC:  Convicted in civil court for Driving under the influence of alcohol and larceny. [Performance evaluation of 19960725]

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:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 12 December 1997, Article 3630605, 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 a lawful order) and Article 111( Drunk or reckless driving).

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

Applicant’s Issues

1. Automatic upgrade.
2. Seeking employment benefits and attempting to purchase a home.

Decision

Date:  20090917		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

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/or the reason for discharge if such 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 record includes two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey a lawful order or regulation), Article 111 (Reckless driving), and Article 112a (Wrongful use of a controlled substance).  The Applicant performance evaluation signed 25 July 1996 indicates that he was also convicted for driving under the influence of alcohol and larceny in a civilian court and that he was a below average performer who required supervision to complete tasks.  Based on the drug offense committed, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with qualified counsel and submit a written statement.  However, per his DD Form 214, the Applicant was subsequently discharged based on the commission of a serious offense, given a separation code of HKQ indicating he waived his right to an administrative separation board and assigned an Other Than Honorable Discharge.  The presumption of regularity was applied in the absence of an administrative separation package.   

:  (Nondecisional) The Applicant contends he is entitled to an upgrade to Honorable since it has been seven years since his discharge.  Additionally, the Applicant contends he is seeking to get a job with the U. S. Census Bureau and purchase a home.  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.  Furthermore, the U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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.  Additionally, 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.  

The Applicant has also requested a copy of his DD Form 214 and certificate of eligibility.  The NDRB is not the release authority for personnel records.  The Applicant may request a copy of his service record from the Army Review Boards Agency, Support Division, St. Louis, 9700 Page Avenue, St. Louis, Missouri 63132-5200.  Additionally, the NDRB does not have authority to issue certificates of eligibility.  Therefore, it is recommend that the Applicant contact his local VA. 

(Decisional) ()  . The Applicant has requested an upgrade to Honorable; he has not presented any documentary evidence for the Board’s consideration.  Based on the Applicant’s two NJPs and civilian conviction during the period of enlistment, the NDRB determined that there was sufficient evidence to support a discharge for misconduct due to the commission of a serious offense.  Additionally, the Board determined that the awarded discharge characterization was appropriate and that an upgrade was not warranted taking into consideration the overall record of service, the frequency and seriousness of the offenses committed and lack of evidence to mitigate the misconduct, which resulted in his discharge. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, and  record entries, the Board found  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain COMMISSION OF A SERIOUS OFFENSE. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct. 

ADDENDUM:  Information for the Applicant
Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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.

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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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