ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received: 20090416
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)	20030225 - 20031112  	Active:	

Period of Service Under Review:
Date of Enlistment:  20031113	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070320	Highest Rank/Rate:  FC2
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  92
Evaluation Marks:	Performance:  2.50 (2)	Behavior:  2.50 (2)	OTA:  2.58

Awards and Decorations (per DD 214):	  

Periods of UA/CONF:  

NJP:  
- 20060213:	Article 128 (Assault)
		Awarded:     Suspended:  

SCM:            

SPCM:  

CC:  
-20070305:	Offense:  Battery/Simple
		Sentence:  Fine $240.00 Jail for 5 days (2 days credit)

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, etc. should include “Navy and Marine Corps Achievement Medal”

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:    
                    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 violation of the UCMJ, Article 128 (Assault).

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

Applicant’s Issues

1.  Educational benefits.
2.  Recommend his reentry (RE) code change to RE-1 from RE-4.
3.  Change rate and paygrade on DD Form 214.
4.  Improper discharge.
5.  Admission of guilt was due to a coercive atmosphere, thus should not be admissible. 
6.  Admission of guilt was not obtained in accordance with Florida Law, thus should not be used against Applicant.
7.  Offense did not meet COSO standards, thus Applicant should not have been separated.
8.  Change separation code to KBK from JKQ.
9.  Change narrative reason for separation to expiration of active obligated service (EAOS) vice misconduct (serious offense).

Decision

Date:  20090514	                 Location:  Washington D.C.           Representation:  

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

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 paragraphs concerning  and  regarding .  

:  ()  .   The Applicant’s counsel requested the “DD 214 reflect in block 4a the rate and rank of FC2 and block 4b reflect grade E5.”  The Board cannot determine with certainty the actual rank and paygrade of the Applicant.  In the Commanding Officer, USS BAINBRIDGE (DDG 96) letter 1910 Ser DDG96 – ADM/080 of 12 Mar 07, the subject is “ADMINISTRATIVE SEPARATION ICO FC2 [Applicant], USN, [SSN].”  However, in the Applicant’s final Evaluation Report and Counseling Record (E1 – E6), 06JUN16 to 07MAR15, Block 8, Promotion Status, lists “FROCKED” indicating the Applicant was frocked to FC2.  If the Applicant was frocked, the frocked grade cannot be listed on the DD Form 214.  In addition, the Civil Court Case Report, Security Dept., NAS Jacksonville of 28-Mar-07 lists the Applicant’s rank/rate or grade as FC3.  Since the Applicant did not provide any documentation to support his contention, the Board determined a correction to blocks 4a and 4b would be inappropriate.  However, the Board did find evidence the Applicant warrants a Navy and Marine Corps Achievement Medal and will note the administrative error to the Commander, Navy Personnel Command.

Issue 4:  ()  .   The Applicant contends his Command failed to obtain sufficient information to properly make a decision to separate him from the Navy.  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 civilian conviction for violation of the Uniform Code of Military Justice (UCMJ):  Article 128 (Assault).  This violation is considered a serious offense which 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 command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.  

The Applicant was apprehended on 05 March 2007 and according to the Civil Court Case Report, Security Dept., NAS Jacksonville of 28-Mar-07, it states the date of trial was 06 March 2007.  The Applicant initialed the Administrative Separation Processing Notification Procedure letter on 09 March 2007.  Since the CO used the Notification Procedure, he had determined the offense did not require mandatory processing and believed circumstances did not warrant an Under Other Than Honorable discharge.  The CO identified two reasons to administratively separate the Applicant: (1) Commission of a Serious Offense – Civilian Conviction; and (2) Commission of a Serious Offense – Misconduct.  The Applicant waived his right to consult with qualified counsel, to submit a written statement, and to obtain copies of the separation documents; and with less than six years of total active service was not eligible to request an administrative board.  It seems the Applicant and his counsel focused strictly on the civilian conviction, where in fact, the CO took into account the Sailor’s entire record of service.  Although the Applicant may have been a good Sailor, he had two assault charges in a 13-month span.  Despite a Sailor’s prior record of service, certain serious offenses warrant separation from the naval service to maintain proper order and discipline.  The Board determined the CO had a preponderance of evidence to decide whether or not to administratively separate the Applicant, and the characterization of service received, General (Under Honorable Conditions), was an appropriate characterization and an upgrade would be inappropriate.
  
Issue 5:  ()  .  The Applicant contends his admission of guilt was due to a coercive atmosphere, thus should not be admissible.  Per the court proceedings, the Judge explicitly explained the procedures and rights of the defendants; to include, constitutional rights, the rights to have a lawyer and the three options (Guilty, Not Guilty, and No Contest) for a defendant to plead when called upon.  According to the court transcripts, the Applicant understood those rights and chose to make a plea of his own choosing.  During the Applicant’s session, he pled “No Contest” initially, and later changed to a Guilty Plea.  The Judge tried to assist the Applicant in making the right decision to clear his name and possibly save his career in the Navy.  Regardless of the circumstances, the Applicant made an informed decision that the court and the Navy will hold him accountable for his own actions.  The Board determined that the issue has no merit and an upgrade would be inappropriate.  

Issue 6:  ()  . The Applicant contends his admission of guilt was not obtained in accordance with Florida Law, thus should not be used against the Applicant.  The Judge informed the Applicant that he “was charged with battery, fighting of some description.”  For the Applicant’s edification, the Judge has the discretion to either accept or deny a defendant’s plea.  It is clear the Applicant wants to plead No Contest or Guilty, but his explanation supports a Not Guilty plea.  At first, the Judge would not accept the Applicant’s plea of No Contest or Guilty.  Only after continued questioning of the incident and clarification on the proper actions the Applicant can take, the Judge allowed him to plead “Guilty.”  Furthermore, at the time the Applicant was notified of his administrative separation, how the judge obtained the Applicant’s guilty plea is irrelevant to the CO.  The CO only needed to know whether or not the Applicant was convicted in a civilian court.  The Board determined this issue has no merit and an upgrade would be inappropriate.  

Issue 7: () .  The Applicant contends his assault did not meet “Commission of a Serious Offense” (COSO) standards.  The fact the Applicant committed assault is indisputable.  There was a Navy female Sailor who required stitches in her lip, and a statement by the Applicant, whether sworn or unsworn, admitting to striking her.  Violation of the UCMJ, Article 128 (Assault consummated by battery) is considered a serious offense which 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.  As noted in Issue 4, this is the second assault in 13 months and the second time the Applicant was being punished.  The CO made the determination of the severity of the COSO offense and took the appropriate actions to administratively separate the Applicant.  The Board determined this issue has no merit and an upgrade would be inappropriate.  

Issues 8-9: () .  The Applicant, through his counsel, requested a change on the Applicant’s DD Form 214, block 26 (separation code) and block 28 (narrative reason for separation) to support separation due to completion of his active obligated service.  The Applicant was involuntarily separated under the Naval Military Personnel Manual, section 1910, Enlisted Administrative Separations.  The Applicant’s period of enlistment was four years with a 24-month extension, and he only completed three years and four months of his obligation.  The Applicant clearly did not complete his active obligated service.  The Board determined this issue is without merit 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 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