ex-SWCN, USN

Current Discharge and Applicant’s Request

Application Received: 20091117
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)	19880815 - 19890814  	Active:	 19890815 - 19930814 (HON)

Period of Service Under Review:
Date of Current Enlistment:  19930815	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960627	Highest Rank/Rate:  SW3
Length of Service:   Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  50
Evaluation Marks:	Performance:  3.0 (5)	Behavior:  3.2 (5)	OTA:  3.16 (5)

Awards and Decorations (per DD 214):	Rifle  Pistol    (w/ 2 bronze stars & FMF device) CGSOS      (w/ 2 bronze stars) 

Periods of UA/CONF:  

NJP:  

- 19950602:	Article 86 (Absence without leave, 1400-1530), 19950406
	Article  (Failure to obey regulation), 2 specifications
	Specification 1: Wrongfully operating government vehicle without valid license, 19950330
	Specification 2: Failure to report oil/hazardous substance spill, 19950330
	Article 108(Damaged military property through neglect, approx $600 value), 19950330 
	Awarded:    (30 days)  Suspended:   (16 days suspended)

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19890815 UNTIL 19930814”
	  “MILPERSMAN 1910-142”
	
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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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, Article 92, 108.

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

Applicant’s Issues

1.	Applicant seeks an upgrade to obtain service-related benefits and state income tax exemption.
2.	Applicant seeks an upgrade to improve employment stability.  
3.	Applicant seeks a recommendation to upgrade his RE-code to reenlist in the U.S. Armed Forces.
4.	Applicant contends his discharge was inappropriate.
5.	Applicant contends his post-service achievements are worthy of consideration.

Decision

Date:  20110203		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 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 did not contain any NAVPERS 1070/613 (Page 13) retention warnings but did contain   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1400-1530 on 6 Apr 1995), Article 92 (Failure to obey order or regulation, 2 specifications: on 30 Mar 1995,wrongfully operated a government vehicle without a valid government license and failure to report an oil/hazardous substance spill), and Article 108 (Damage to Military Property, 30 Mar 1995, approximately $600 damage to forklift and other government property).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure on 22 Apr 1996, the Applicant exercised his right to submit a written statement but waived  rights to consult with a qualified counsel and request an administrative separation board.

:  (Nondecisional) The Applicant seeks an upgrade to obtain service-related benefits and a state income tax exemption.  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.

:  (Nondecisional) The Applicant seeks an upgrade to improve employment stability.  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.

:  (Nondecisional) The Applicant seeks a recommendation for an upgrade to his RE-code to reenlist in the U.S. Armed Forces.  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, or recommend a change.  Only the Board for Correction of Naval Records 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.

Issue 4:  (Decisional) ()  .  The Applicant contends his discharge was inappropriate.  After being found guilty of the aforementioned charges at commanding officer’s NJP in June 1995, the record indicates the Applicant’s level of work performance and evaluation report averages began to erode.  The Applicant did not desire to remain in his assigned rating and did not succeed in transferring to another rating, so he chose to pursue an early release approximately 1.5 years prior to his end of enlistment contract.  The Applicant then circumvented his chain of command and wrote two letters, dated 16 and 23 Feb 1996, directly to two U.S. Senators from CA and MA in which he asked for help in seeking an early release from the Navy.  More than one month later, his command was notified via legislative affairs and the chain of command that the Applicant had contacted the Senators for assistance.  The command then directed the Applicant to submit a request chit through his chain of command to address his desire for release from active duty “for the best interest of the service.”  The Applicant submitted the request on 3 Apr 1996, which was subsequently denied by the Chief of Naval Personnel (BUPERS).  Since the request for early release was denied by BUPERS, and after counseling and discussion with the Applicant on the options available and the potential consequences, his commanding officer initiated administrative separation processing for separation from the Navy due to commission of a serious offense as a result of the misconduct for which he was found guilty previously at NJP.  When notified of administrative separation processing on 22 Apr 1996, the Applicant elected his right to submit a written statement but waived his rights to consult with qualified counsel and request an administrative separation board.  Additionally, he signed his name acknowledging the following statement: “I do not object to this separation.”

On 23 Mar 1996, the commanding officer responded to the congressional inquiries stating: “…the Applicant has the potential to be a good Sailor.  Since reporting aboard this command on 16 Mar 1993, he has been assigned numerous duties commensurate with his rate and rank.  His performance has been marked by peaks and valleys with frequent counseling for failure to obey rules and regulations and unauthorized absences.  This trend began within a few months of his reporting aboard and affected him not only at this command but at another command to which he was temporarily assigned for additional duties.  On 2 Jun 1995, the Applicant (at the time a Petty Officer) received nonjudicial punishment for violation of three articles of the UCMJ.  The charges included unauthorized absence, failure to obey lawful orders (operating a U.S. Government vehicle without a valid operator’s license and failure to report a hazardous substance spill), and damage to government property.  Aggravating the offenses cited above, he attempted to deceive the command regarding his actions until confronted during a command investigation.  He was awarded a reduction in paygrade to E-3, forfeiture of $567.00 pay for one month, restriction, and extra duties for 30 days.  Sixteen days of the 30-day restriction were suspended in view of a previously approved special request for leave to get married.  Since the above incident, the Applicant has shown little desire to pick up his career and perform at his potential.  He continues to require counseling for lack of self-improvement and continues to be occasionally late for duty.  He volunteers to perform tasks requiring working parties but has not shown desire to improve in his rate as a steelworker.  His Chief’s counseling, taken out of context, has been to ensure he receives the necessary experience and exposure to be competitive in his chosen rate.  This command holds all of its personnel to high standards of performance and the Applicant has not responded.  In his basic letter, he states that he will never be able to advance and that he desires to be discharged.  His actions to date confirm this desire.  I concur that it is in the best interest of the Navy, this command, and for the Applicant, that an early separation be pursued.  My staff has reviewed all the possibilities with the Applicant and will process him in accordance with the Bureau of Naval Personnel.”

In the commanding officer’s 16 May 1996 recommendation for administrative separation to the Chief of Naval Personnel, he stated: “…Member’s lack of desire for further Naval service has been determined non-compliant for separation under this article (MPM 3630900 best interest of the service).  In addition, the Applicant does not meet the criteria listed for separation under the convenience of the government, Article 3620200.  However, he does meet the criteria for separation under misconduct due to commission of a serious offense, Article 3630600 for violation of UCMJ, Article 92 (two specifications) and Article 108.  At the time of the offense, it was felt by all in the chain of command that the Applicant had learned from the experience and still had a future in the Naval service.  Therefore, separation was not pursued at that time.  The Applicant was personally briefed by the Commanding Officer concerning his request and the type of separation defined under the commission of a serious offense.  He elected to continue his pursuit to be discharged from the naval service knowing of the possible consequences.  The Applicant is a good performer with potential to succeed in the Navy.  He is, however, disinterested in his present rate with no desire to become proficient therein, and has no motivation to change his rate.  Many alternatives, which have been explained, remain for the Applicant to pursue.  Considering all the facts presented and that the processing is in response to direction received by BUPERS, I recommend retention in the Naval service.  However, if the member’s wish to be separated is to be granted, I then strongly recommend separation under misconduct due to commission of a serious offense and awarding of an Other Than Honorable discharge.”

After careful consideration of all the facts and circumstances surrounding the Applicant’s discharge and the orders and directives in effect at the time of his separation, the NDRB determined his discharge was proper and fair and therefore, this issue did not provide a basis for which relief could be granted.

Issue 5:  (Decisional) ()  .  The Applicant contends his post-service achievements are indicative of his true character.  The Applicant provided documentation that included: in-service certificates of schools/course completion, a letter of appreciation (LoA) he received as a Petty Officer Third Class, and a commercial driver license (CDL) certification with Hazmat endorsement.  Though not submitted by the Applicant, additional documentation could have included: a verifiable employment record; ; ; ; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (if applicable).  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 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.  After careful consideration of all the available evidence and documentation, the Board found this issue did not provide a basis for which relief could be granted.

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, 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