ex-GMSN, USN

Current Discharge and Applicant’s Request

Application Received: 20091015
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)	20040617 - 20050123  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050124	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080501	Highest Rank/Rate:  GM3
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  38
Evaluation Marks:	Performance:  2.7 (3)	Behavior:  1.7 (3)	OTA:  2.61

Awards and Decorations (per DD 214):	Pistol       (2)

Periods of CONF:  

NJP:  

- 20051218:	Article  (Provoking speech or gestures) 
	Article  (Assault)
	Awarded:   Suspended:  

- 20070104:	Article  (UA - failed to return to appointed place of duty)
	Article  (Derelict in the performance of duties), 2 specifications
	Specification 1: Negligently failed to maintain positive control of high security keys for Torpedo Magazines
	Specification 2: Sleep on watch
	Awarded:     Suspended:   FOR 1 MONTH 

- 20070605:	Article  (UA - failed to return to appointed place of duty)
	Awarded:    Suspended:   FOR 1 MONTH

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20050824:	For failure to obey order or regulation.

- 20070104:	For absence without leave and two specifications of failure to obey order or regulation.

- 20051218:	For provoking speeches or gestures and assault.

- 20070605:	For absence without leave.

Administrative Corrections to the Applicant’s DD 214

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

	  “03  03  08”
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY “E” RIBBON; NATIONAL DEFENSE SERVICE MEDAL; IRAQ CAMPAIGN MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2); EXPERT PISTOL MEDAL; LETTER OF COMMENDATION”
	  “PATTERN OF MISCONDUCT”

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:		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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 
Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.	The Applicant seeks an upgrade in the characterization of his service at discharge from General (Under Honorable Conditions) to Honorable in order to receive employment.  

2.	(Equity) The Applicant contends his disciplinary problems were caused by stress within his personal life resulting from family tragedy.  The Applicant contends the characterization of his discharge should be upgraded because the decisions he made were influenced by his family situation and not indicative of his personal character and service.

3.	(Equity) Post-service conduct.  

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 identified one decisional issue to the Board.  Furthermore, the Board 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 both equity and of propriety.  

The Applicant enlisted into the Naval service for 4 years at age 18.  The Applicant’s record of service included four NAVPERS 1070/613 (Page 13) retention-counseling warnings and three non-judicial punishments for  of the Uniform Code of Military Justice (UCMJ) as follows: 
•	Article 86 (Absence without leave – failure to return to appointed place of duty) (2 specifications), 
•	Article 92 (Failure to obey an order or regulation; 2 specifications (negligently failed to maintain control of high security keys for Torpedo Magazines and sleeping on watch), 
•	Article 117 (Provoking  speech or gestures),
•	Article 128 (Assault). 
 
Additionally, the Applicant was pending determination of charges referred against him for violation of Article 128 (Assault) in that the Applicant unlawfully choked a female Third Class Petty Officer with his hands around her neck.  A final determination of this charge was not found in the Applicant’s service record but was referred to by the Commanding Officer in the Administrative Separation determination.

Based on the offenses committed by the Applicant, the command administratively processed him for separation with a dual basis of notification: Pattern of Misconduct and Misconduct – Commission of a Serious Offense.  The NDRB reviewed the Applicant’s administrative separation package.  When notified of administrative separation processing using the discharge notification procedure, the Applicant waived his right to consult with a qualified counsel, elected to exercise his right to submit a written statement to the separation authority (not found in record), waived his right to elect a General Court-Martial Convening Authority review.  The Applicant was not eligible to request an administrative board.  

:  (Nondecisional).  The Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to obtain employment opportunities.  This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining or enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.  The Applicant is directed to the Addendum, Employment/Educational Opportunities regarding this issue.

:  (Decisional) ()  .  The Applicant contends his disciplinary problems were caused by stress within his personal life resulting from family tragedy.  The Applicant contends the characterization of his discharge should be upgraded because the decisions he made were influenced by his family situation and not indicative of his personal character and service.  The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  In regards to propriety, the Applicant’s three non-judicial punishments, coupled with a pending charge of assault while awaiting the Separation Authority’s final determination, coupled with the four Page 13 counseling retention-warnings, met the requirements of the Naval Military Personnel Manual (MILPERSMAN) for separation based on both a Pattern of Misconduct and for Misconduct – Commission of a Serious Offense.  Violation of Article 128 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge, but opted instead for the more lenient administrative discharge.  The NDRB found no issues of impropriety in the Applicant’s discharge process; as such, an upgrade based on propriety would be inappropriate.  Relief denied.

The NDRB recognizes that serving in the military is challenging.  Most Sailors, however, serve honorably and therefore earn their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. 

The Applicant’s record of performance and conduct reflected both a pattern of misconduct and misconduct considered the commission of a serious offense.  The Applicant was subject to non-judicial punishment for unauthorized absence, violation of orders, assault on fellow shipmates, and provoking speech or gestures.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, does reflect a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances.  An upgrade would be inappropriate.  Accordingly, relief is denied. 

:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants an upgrade in his characterization of service.  The Applicant submitted four character references.  Unfortunately, his efforts need to be more encompassing.  The Applicant could have provided documentation to include: verifiable employment record/letter of recommendation from his employers; certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service, and if married, a marriage certificate.  The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

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