ex-IC3, 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)	19920430 - 19930207  	Active:		19930208 - 19970205  
					19970206 - 20021121  
Period of Service Under Review:
Date of Current Enlistment:  20021122	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050624	Highest Rank/Rate:  IC2
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  58
Evaluation Marks:	Performance:  3.5 (2)	Behavior:  3.5 (2)	OTA:  3.29
Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  NFIR	CC:  NFIR	Retention Warning Counseling:  2

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “SOUTHWEST ASIA SERVICE MEDAL (2); SEA SERVICE DEPLOYMENT RIBBON (3), BATTLE “E” RIBBON”, NATIONAL DEFENSE SERVICE MEDAL (2)

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.	Nondecisional: The Applicant seeks a change in characterization of service from Under Other Than Honorable Conditions to Honorable and a corresponding change in re-enlistment code in order to receive 100% eligibility for college tuition assistance.  Additionally, Applicant seeks the changes to be eligible for re-enlistment, should he opt to return to military service.   

2.	Decisional issues: (Equity) The Applicant contends that his post-service conduct, coupled with his 12 years of total service, warrants consideration in consideration of the equitability of his characterization of service at discharge.

Decision

Date:  20101220   	        Location:  Washington D.C.	     Representation:  New Jersey Division of 
 					   Veteran Services

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 for the NDRB’s consideration.  Furthermore, 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 enlisted into the naval service at the age of 18 and served two honorable periods of service.  The Applicant re-enlisted at age 28 for his third period of continuous service.  Upon separation, the Applicant had completed 12 years and 4 months of total service.  The Applicant was separated from the Naval service pursuant to an established Pattern of Misconduct in accordance with paragraph 1910-140 of the MILPERSMAN, and he received an Under Other Than Honorable Conditions characterization of service.  The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention-counseling warnings and no record of any non-judicial or judicial punishments during the period of enlistment under review.   

The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Board applied the presumption of regularity in governmental affairs in this case in the absence of a complete discharge package and complete service record.  The Applicant’s record of service was very incomplete, and the NDRB could find no documentation regarding the misconduct upon which the separation was founded.  However, the Applicant’s DD Form 214, block 12(h) indicates the Applicant was reduced in rate on 12 Jan 2005.  Additionally, block 26 of the DD-214 (Separation Code - GKA) indicates that the Applicant warranted, and received, an administrative discharge board hearing pursuant to his separation.  The administrative discharge board members were required to determine that the reason for separation - pattern of misconduct - was supported by a preponderance of the evidence available and that separation from the service was warranted.  Furthermore, the administrative discharge board would be required to recommend the characterization of service received and whether the Applicant warranted retention in the reserve component.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his identified issues.  
The Applicant provided no documentation to rebut any presumption of regularity in governmental affairs by the NDRB; however, he did provide letters of reference, certificates of recent technical training and professional certifications, post-service educational achievements, and an affidavit attesting to the command climate in the Applicant’s last command.    

:  (Nondecisional).  (1) Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to obtain educational benefits.  (2) Applicant seeks an upgrade to the characterization of service at discharge in order to facilitate future re-enlistment opportunities.  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service educational benefits, not the NDRB.  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 veterans educational benefits.  Additionally, 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 the equity of a discharge.  The Applicant is directed to the Addendum, Employment/Educational Opportunities and Service Benefits regarding these issues.  

The Applicant is requesting an upgrade in characterization of service and a change to his re-enlistment code in order to re-enlist in the armed forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change the re-entry code as requested.  The Applicant should petition the Board for Correction of Naval Records using DD Form 149.  When requesting this change, the Applicant should provide as much documentation as possible regarding the reason for separation that warranted the assignment of the RE code.  Their address is:
 
    Board for Correction of Naval Records (BCNR) 
    2 Navy Annex 
    Washington, DC  20370-5100.  

Further information may be located online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

:  (Decisional) ()  .  The Applicant contends that his post-service conduct, coupled with his 12 years of total service, warrants consideration in the equitability of his characterization of service at discharge.  Since the NDRB could not fully evaluate the Applicant’s conduct during his third enlistment, the NDRB relied on a presumption of regularity in the conduct of governmental affairs.  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.  In presuming regularity in governmental affairs, the NDRB relies upon the fact that the Applicant had an administrative discharge board hearing, comprised of his peers, in which the Applicant was represented by counsel and was able to rebut the Command’s contention that he had established a pattern of misconduct that warranted separation from the Naval service under Other Than Honorable Conditions.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The NDRB considers 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.  The Applicant provided letters of reference and documentation regarding his employment, finances, education and training, health and medical records, substance abuse, criminal records, family and personal status, and community service.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for naval personnel to warrant an Honorable characterization of service.  As such, relief as requested is denied.  

Summary:  After a thorough review of the available evidence, to include the NDRB’s presumption of regularity, the Applicant’s summary of service, and his  record entries, the NDRB 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