ex-ENFR, USN

Current Discharge and Applicant’s Request
Application Received: 20091030
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)	20001107 - 20001119  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20001120	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040102	Highest Rank/Rate:  ENFN
Length of Service:   Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  

- 20020920:	Article  (Dereliction in the performance of duty and failure to obey an order or regulation)
	Article  (Failure to report to appointed place of duty)
	Awarded:     Suspended:  
- 20021217:	NFIR  [Extracted from NAVPERS 1070/604, Awards]

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20050616
NDRB Documentary Review Docket Number:	ND04-01122
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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.	Applicant contends his administrative discharge was improper per civilian court evidence and findings produced post-separation.
2.	Applicant seeks change to narrative reason and separation code on his DD-214 due to court evidence and findings produced post-separation.

Decision

Date:  20101115		Location:  Washington D.C.	Representation:  

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

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.  During the Applicant’s personal appearance hearing, the Board conducted 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 Board noted that the Applicant’s service records were incomplete as evidenced by the lack of documented NAVPERS 1070/613 (Page 13) counseling and warning forms, NAVPERS 1610/2 evaluation reports, and the Applicant’s administrative separation package.  His record of service did reflect   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, failing to report to appointed place of duty) and Article 92 (Failure to obey order or regulation, 2 specifications, underage drinking and dereliction in performance of duty).  Additional documentation included police arrest reports, dated 1 Oct 2003 and 16 Oct 2003, from domestic dispute incidents in which the Applicant was arrested for aggravated domestic battery.  Based on his previous documented misconduct and the pending offenses committed by the Applicant, evidenced at the time by local jurisdiction police reports, two periods of jail time within the same month, and the pending civil prosecution for aggravated domestic battery, his command administratively processed  for separation.  The Applicant testified that a PN2 from his command visited the local jail where he was detained, pending prosecution after the 13 October 2003 incident, and advised him he was being separated from the Navy.  The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or 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.

The Applicant provided documentation that included: ; letters of personal reference; ; completion of alcohol rehabilitation treatment; evidence of financial stability; certification of non-involvement with civil authorities; certificates of completion of family and children services education courses; college dean’s list certificates; and marriage and child birth certificates.  The Applicant also provided the following documentary evidence: vacation of judgment in state of Florida (Fourth Circuit Court) versus the Applicant; final judgment/modification to dissolution of marriage by the state of Florida (Duval County Court); termination of probation notification; and Community Behavioral Services report findings and analysis.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  

:  (Decisional) ()  . The Applicant contends his administrative discharge was improper per the civilian court evidence and court findings produced post-separation.  At the time of separation, the Applicant’s command determined his personal behavior and involvement with civilian authorities responding to domestic disputes, which were consummated by battery on his spouse, portrayed a significant departure from the standards of conduct expected of members of the naval service.  As such, his command processed him for administrative separation due to a pattern of misconduct per the U.S. Navy Personnel Manual (MILPERSMAN) section 1910-140.  The evidence available to the command at the time included his prior documented misconduct coupled with two local jurisdiction police arrest reports with subsequent periods of detention in the local jail, both during October 2003, for charges of aggravated domestic battery of his pregnant spouse, which is considered a felony in the state of Florida.  The initiation of his administrative separation was conducted while the Applicant was incarcerated in jail, pending prosecution after the second domestic violence incident on 16 October 2003.  He was subsequently separated from the Navy while home on leave in Oklahoma after his release from jail.

The Applicant provided detailed court memoranda from the state of Florida that overturned its previous guilty determination of the Applicant for charges of domestic assault and modified its previous dissolution of marriage judgment thereby providing sole custody of the Applicant and his ex-wife’s minor child to the Applicant.  These major reversals in the court’s previous judgments were based on newly discovered evidence submitted to the court that included: the Applicant’s ex-wife recanting her previously sworn statements claiming domestic battery against the Applicant; a report from community behavioral services on the Applicant and Applicant’s ex-wife providing detailed observations, analysis, and recommendations to the court; testimony from witnesses; and testimonial evidence from the Jacksonville Florida Sheriff’s office regarding the credibility of the Applicant’s ex-wife.  After careful consideration and thorough review of all the available evidence to include the Applicant’s testimony, the Board determined that the Applicant’s administrative separation from the service was improper - though proper and equitable at the time of discharge given the evidence available.  RELIEF WARRANTED.

:  (Decisional) ()  .  The Applicant seeks a change to the narrative reason and separation code on his DD-214 due to court evidence and findings produced post-separation.  In conjunction with the Board’s determination of impropriety regarding the Applicant’s administrative separation and the resultant characterization of service as Under Other Than Honorable Conditions (Issue 1), the NDRB determined that the Applicant’s narrative reason for separation and corresponding separation code no longer accurately reflected his discharge.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  There is no other narrative reason for separation that accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.  RELIEF WARRANTED.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, the Board found the discharge was proper and equitable at the time of discharge based on the evidence available at the time.  However, based on extensive post-service documentation to include recent judgment reversals in the state of Florida Fourth Circuit Court and Duval County Court due to newly discovered evidence, the Board determined the awarded characterization of service shall   and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.

The NDRB will recommend to the Commander, Navy Personnel Command (NAVPERSCOM), that the Applicant’s DD-214 reflect the appropriate changes to: Character of Service, Narrative Reason, and Separation Code (SPD).

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