ex-YNSA, USN

Current Discharge and Applicant’s Request

Application Received: 20091008
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)	20071127 - 20080408  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080409	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090705	Highest Rank/Rate:  YNSN
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  53
Evaluation Marks:	Performance:  1.5 (2)	Behavior:  2.5 (2)	OTA:  2.17

Awards and Decorations (per DD 214):	Pistol , , , 

Periods of UA/CONF:  

NJP:  

- 20090607:	Article  (False official statements, 2 specifications)
	Article  (Provoking speeches or gestures)
	Awarded:  FOP  Suspended:  

SCM:  	SPCM:  	CC:  	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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 19 May 2008 until 9 November 2009, Article 1910-156, SEPARATION BY REASON OF UNSATISFACTORY PERFORMANCE.

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.

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

Applicant’s Issues
1.	Decisional issues: (Equity)  The Applicant contends that the reason for discharge – Unsatisfactory Performance – was wrong because there was no witnesses or evidence against him for his NJP.   

Decision
Date:  20101209	           Location:  Washington D.C.	Representation:  

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

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 the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant provided no documentation for the NDRB’s consideration in his case review, nor to refute the NDRB’s presumption of regularity in governmental affairs.  The Applicant identified one decisional issue for review.  Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant was approved for enlistment in the Navy with a waiver for having been previously released from the delayed entry program for immaturity and disrespectful conduct to the Military Entrance Processing Center Medical staff.  The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 107 (False Official Statements; specifics of the charge not found in record) and Article 117 (Provoking speech, gestures; 2 specifications - details not found in the record).  The Applicant was deployed in support of Overseas Contingency Operation when separated.   

The NDRB reviewed the Applicant’s administrative separation package; when notified of administrative separation processing using the board notification procedure, the Applicant waived his right to consult with a qualified counsel or to submit a written statement to the Separation Authority and requested an administrative board.  However, the Command had notified the Applicant that they were recommending a General (Under Honorable Conditions) characterization of service, thereby nullifying the right to an administrative hearing board.

:  (Decisional) ()  .  The Applicant contends that the reason for discharge – Unsatisfactory Performance – was wrong in that there were no witnesses or evidence presented against him during his NJP.  Since the NDRB could not fully evaluate the Applicant’s nonjudicial punishment, the NDRB relied on a presumption of regularity in the conduct of military affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any documented evidence for the NDRB’s consideration, to support the contention the Applicant deserves an upgrade in characterization.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

The strict rules of evidence in a court-martial do not apply in NJPs.  A unit commander at NJP makes decisions based upon a preponderance of the evidence available to him.  In the Applicant’s case, the Commanding Officer imposed nonjudicial punishment and found that by a preponderance of the evidence, the Applicant was clearly guilty of the charges and specifications.  The Applicant was reduced in rank to E-2 and was ordered to forfeit one-half of one month’s pay, for two months; the Commanding Officer did not suspend any of the awarded punishment.  The Applicant was not separated due to the imposition of nonjudicial punishment.  He was separated for Unsatisfactory Performance.  In accordance with MILPERSMAN 1910-156, members may be separated for “Unsatisfactory Performance” when they are unqualified for further Naval Service as demonstrated by:
    
(a)  one or more enlisted performance evaluations with 1.0 marks for any performance trait;
(b)  denial or revocation of security clearance (for cause), thereby precluding ability to perform duties in assigned rating;     
(c)  for violating a NAVPERS 1070/613 (Rev. 07-06), Administrative Remarks counseling/warning, that specifically addresses these unsatisfactory performance deficiencies.
The Applicant’s two enlisted performance evaluations reflected a performance trait average of 1.5 and a behavior average of 2.5, with an overall trait average of 2.17.  Moreover, the Applicant received a 1.0 mark in the performance traits: Quality of Work and Command or Organizational Climate/Equal Opportunity.  In accordance with MILPERSMAN 1940-156, sub paragraph 2(a), the Applicant received one or more enlisted performance evaluations with a 1.0 mark in a performance trait; as such, the NDRB determined that the separation action and the subsequent narrative reason for separation, were proper.  No impropriety existed.  Relief denied.

In accordance with MILPERSMAN 1910-156, the characterization of service at separation should be General (Under Honorable Conditions), unless an Entry Level Separation (MILPERSMAN 1910-308) or Honorable is warranted per MILPERSMAN 1910-304.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant had received a non-judicial punishment for violations of the UCMJ related to making false official statements and using provoking speech or gestures.  The NDRB determined that the Applicant’s conduct was honest and faithful, but that significant negative aspects of his conduct and performance did outweigh the positive aspects of his service.  As such, the NDRB found the characterization of the Applicant's discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief under consideration of equity is denied.

Summary:  After a thorough review of the available evidence unique to this case, to include the Applicant’s summary of service,  record entries, and the discharge process, the Board found no impropriety in the discharge action or inequity in the characterization of the Applicant’s service.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain UNSATISFACTORY PERFORMANCE.  

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 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.

Service Benefits:  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.

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