ex-SKSR, USN

Current Discharge and Applicant’s Request

Application Received: 20091022
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	Administration Separation

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20070131 - 20070507  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070508	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090116	Highest Rank/Rate:  SKSA
Length of Service:   Year(s)     Month(s)   9 Day(s)
Education Level:  	AFQT:  57
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  3.0 (1)	OTA:  3.0 (1)

Awards and Decorations (per DD 214):	  

Periods of UA/CONF:  

NJP:  

- 20080411:	Article  (Failure to obey order, underage drinking, 8 Feb 2008)
	Article 112 (Drunk on duty, 8 Feb 2008)
	Awarded:  EMI Essay Paper   Suspended:  (Reduction to E-1 suspended for 6 months)

- 20081029:	Article  (Absence without leave, 7 specifications)
	Specification 1: UA from work center, 7 Sep 2008
	Specification 2: UA from work center, 7 Sep 2008
	Specification 3: UA from muster, 19 Sep 2008
	Specification 4: UA work center, 27 Sep 2008
	Specification 5: UA after liberty expiration, 30 Sep 2008
	Specification 6: UA from muster, 18 Oct 2008
	Specification 7: UA from muster, 19 Oct 2008
	
	Article  (Insubordinate conduct towards a Petty Officer, 3 specifications)
	Specification 1: Disobeyed order from Second Class Petty Officer, 1 Sep 2008
	Specification 2: Disrespect toward Second Class Petty Officer, 1 Sep 2008
	Specification 3: Disrespect toward Second Class Petty Officer, 2 Sep 2008
	Awarded:   Suspended:    (vacated 17 Dec 08 due to further misconduct)

- 20081211:	Article  (False official statement with intent to deceive, 9 Dec 2008)
	Article  (Larceny of IPOD, 9 Dec 2008)
	Sentence:  EPD

Retention Warning Counseling:  

- 20080411:	For violation of UCMJ Articles 92 and 112.

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:  “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY & MARINE CORPS OVERSEAS RIBBON, SEA SERVICE DEPLOYMENT RIBBON”
	
	  “MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]”

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 23, effective 12 June 2008 until 9 November 2009, 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, Articles 92, 107, 112, 121.

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

Applicant’s Issues

1.	Applicant seeks upgrade to improve employment opportunities.
2.	Applicant contends his discharge was inequitable as he was being treated for insomnia and depression.
3.	Applicant contends his pre-separation counseling form (DD-2648) listed his characterization of service to be General (Under Honorable Conditions), which is not what is reflected on the DD-214.

Decision

Date:  20101110		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 two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warning for underage drinking and being drunk on duty and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 7 specifications, Sep 2008 thru Oct 2008); Article 91 (Insubordinate conduct toward petty officer, 3 specifications, 1-2 Sep 2008); Article 92 (Failure to obey order, regulation, underage drinking 8 Feb 2008); Article 107 (False official statement with intent to deceive, 9 Dec 2008); and Article 112 (Larceny of fellow shipmate’s IPOD valued at $449, 9 Dec 2008).  Violation of UCMJ Articles 92, 107, 112, and 121 is punishable by confinement (6 months to 5 years) and a Bad Conduct or Dishonorable discharge if adjudicated at trial by special or general court-martial.  The Applicant’s command chose not to prefer charges on him for trial but instead opted to administratively process  for separation.  When notified of administrative separation processing on 11 Dec 2008 using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

:  (Nondecisional) The Applicant seeks an upgrade to improve employment 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.  Therefore, this issue does not provide a basis for which the NDRB can grant relief.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable as he was being treated for insomnia and depression.  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 Government affairs unless there is substantial, credible evidence, to include evidence submitted by the Applicant, to rebut the presumption.  The U.S. Navy Military Personnel Manual (MILPERSMAN) section 1910-142 states service members may be separated based on commission of a serious military or civilian offense when “specific circumstances of the offense warrant separation and the offense requires mandatory processing or the commanding officer (CO) believes circumstances surrounding the offense warrant an Under Other Than Honorable Conditions (OTH) discharge per MILPERSMAN 1910‑300.”

The Applicant’s record of service was marred by multiple violations of the UCMJ.  Although the Applicant was being treated for insomnia and depression, regulations do not preclude disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Even if a member is being processed through the Physical Evaluation Board, which the Applicant was not, 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 Conditions 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.  An Under Other Than Honorable Conditions discharge is warranted when a service member commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant did not meet the requirements of conduct expected of all Sailors, regardless of his grade and length of service, and falls far short of what is required for an upgrade.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his pre-separation counseling form (DD-2648) listed his characterization of service to be General (Under Honorable Conditions), which is not what is reflected on the DD-214.  Page 3 of the Applicant’s DD Form 2648 does in fact state, “Member will be separated from the Naval Service under General (Under Honorable Conditions).”  After reviewing all the documentation related to the Applicant’s administrative discharge, the Board determined this to be an administrative error, likely left over from a previous DD Form 2648 prepared for another service member’s pre-separation counseling.  This form is generated by the transition services located aboard the installation from which a service member separates from service, not from the service member’s command.  It is used to ensure members separating from active service are afforded all the information and resources available to them prior to their transition to the civilian community; it has no bearing or function in the legal or administrative separation processing of military personnel.  Of particular note, the Applicant was advised he was being processed for administrative separation on 11 Dec 2008 via NAVPERS Form 1910/31, which stated he was being processed for separation from the naval service for Pattern of Misconduct and Commission of a Serious Offense and that the least favorable characterization of service possible was Under Other Than Honorable Conditions.  The Applicant chose, in writing on page 1, to elect his right to obtain copies of documents that would be forwarded to the separation authority and waived his rights to consult with qualified counsel, submit a written statement, and request an administrative separation board.  He further acknowledged his understanding when he signed the bottom of page 2 twice to confirm he received and understood the notification and that his official response to the command was complete.  In a 7 Jan 2009 letter, the Commanding Officer, Transient Personnel Unit Puget Sound recommended that the Applicant be separated from the naval service with an Other Than Honorable discharge.  On 8 Jan 2009, the separation authority, Commander, Navy Region Northwest, approved this recommendation and ordered that the Applicant be discharged with an Other Than Honorable characterization of service.  Based on the aforementioned evidence, the Board determined this issue to be without merit.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and administrative 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, 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.

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