ex-FN, USN

Current Discharge and Applicant’s Request

Application Received: 20091119
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)	19991022 - 19991028  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19991029	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20020322	Highest Rank/Rate:  FN
Length of Service:   Year(s)     Month(s)   24 Day(s)
Education Level:  	AFQT:  37
Evaluation Marks:	Performance:  2.0 (2)	Behavior:  2.5 (2)	OTA:  2.50

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  
Lost time per DD214:  20010606 - 20020120 (229 days)

NJP:  	

- 21 Aug 2000: Specific violations not found in record.  Record of NJP extracted from Applicant’s NAVPERS 1070/604 (Enlisted Qualifications History). 
	Sentence:  NFIR

- 30 Nov 2000: Specific violations not found in record.  Record of NJP extracted from Applicant’s NAVPERS 1070/604 (Enlisted Qualifications History).
	Sentence:  NFIR
	
SCM:  	SPCM:  	

CC:  

- NFIR:  Offense:  DUI and reckless driving [Extracted from Evaluation Report & Counseling Record dtd 20010717]
	Sentence:  NFIR

Retention Warning Counseling:  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33 effective 9 July 2001 until 
21 August 2002, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  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 111.

C.  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 issues:  The Applicant seeks an upgrade in his issued characterization of service at discharge and an unspecified change in narrative reason for discharge in order to enlist in the Active Duty United States Army.

2.	Decisional issues:  The Applicant contends that his post-service conduct is worthy of consideration and shows that the isolated incident that caused his discharge was an aberration in his overall character.  

Decision

Date:  20110210		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 NDRB 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 provided no documentation to rebut any presumption of regularity by the NDRB.  The NDRB completed a thorough review of the Applicant’s military service record, the circumstances that led to his discharge, and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.    

The Applicant entered military service at age 19, with two waivers to enlistment standards: (1) for failing the Armed Service Vocational Aptitude Battery Test (ASVAB) first time taken; and (2), for an adjudicated law violation, serious offense - driving under the influence of Alcohol (DUI) five months prior to enlistment.  The Applicant’s military service record includes no NAVPERS 1070/613 retention-counseling warnings but contains two nonjudicial punishments received for violations of the Uniform Code of Military Justice.    

The Applicant was separated administratively due to Misconduct (Civilian Conviction) pursuant to Article 1910-144 of the Naval Military Personnel Manual (MILPERSMAN).  The basis for separation was an arrest by San Diego County law enforcement officials for reckless driving and Driving Under the Influence of Alcohol.  Based on the civilian DUI conviction, the Applicant was remanded to civilian correctional custody for a period of approximately 8 months (05 June 2001 to 20 January 2002).  The Separation Authority approved the discharge recommendation and directed that the Applicant be separated with a General (Under Honorable Conditions) characterization of his service for Misconduct (Civilian Conviction).  The Applicant was not recommended for re-enlistment by his Command; as such, he received an RE-4 re-enlistment code.      

The Applicant’s official service record does not include a copy of the Administrative Discharge package; the NDRB had to rely on the presumption of regularity in governmental affairs.  The Applicant’s Form DD-214 reflects a separation code designator of JKB, indicating that the applicant was separated for civil court conviction without an administrative discharge board hearing.  As the Applicant was recommended for separation with a General (Under Honorable Conditions) characterization, no board was required.  The NDRB was unable to determine if the Applicant exercised his right to consult with qualified legal counsel and submit a statement to the Separation Authority.   

:  (Nondecisional):  The Applicant seeks an upgrade in his issued characterization of service at discharge and an unspecified change in narrative reason for discharge in order to enlist in the Active Duty United States Army.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing re-enlistment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  An unfavorable “RE” code or characterization of service is, in itself, not a bar to reenlistment.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.  The Applicant may also petition the Board for Correction of Naval Records (BCNR) regarding his re-enlistment code using Form DD-149.  When requesting this change, the Applicant should provide as much documentation as possible regarding his reason for change.  The BCNR’s address is:  Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

:  (Decisional) ()  .  The Applicant contends that his post-service conduct is worthy of consideration and shows that the isolated incident that caused his discharge was an aberration in his overall character.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant provided no documentation to the board to rebut the government’s presumption of regularity.  Whenever a Sailor is involved in misconduct, as described in article 1910-144 of the MILPERSMAN, commanders are directed to process the Sailor for separation, unless rehabilitation and retention are warranted.  The characterization of service for Misconduct normally shall be Under Other Than Honorable Conditions, but characterization as General (Under Honorable Conditions) may be warranted in some circumstances.

Article 1910-144 of the MILPERSMAN provides a basis for separation of a Sailor for the commission of a civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or (3), the civil sentence includes confinement for 6 or more months without regard to suspension probation or early release.  Furthermore, Article 1910-144 specifies that all civilian convictions (federal, state, and local), including deferred prosecutions, are binding on the issue of whether misconduct has occurred and an administrative discharge board is thus required to find that misconduct did occur.    

The Applicant’s command determined that, based on a preponderance of the evidence (a civilian court conviction), the misconduct did occur.  Likewise, the same or closely related offense under the UCMJ is violation of Article 111; violation of Article 111 of the UCMJ is a serious offense, punishable by a punitive discharge and confinement of up to 6 months, if adjudicated by a special or general court-martial.  Finally, the Applicant was convicted and served 8 months in the hands of civil authorities, exceeding the 6 or more month requirement as specified in the MILPERSMAN.  Given the circumstances of the Applicant’s case, and the facts of record, the NDRB determined that the actions of the Separation Authority were proper; the basis of separation for Misconduct – Civilian Conviction, was with proper authority.  The NDRB determined that relief, based on propriety, was not warranted.
     
When the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The serious nature of the Applicant’s misconduct warranted imprisonment for more than 6 months.  Additionally, the Applicant’s record of service reflected two nonjudicial punishments for violations of the UCMJ.  The NDRB determined that the Applicant’s conduct during the enlistment period, which forms the primary basis for determining the character of his service at discharge, reflected honest and faithful service, but that significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  As such, the NDRB determined that the awarded characterization of service was appropriate and equitable; an upgrade would be inappropriate.  As such, no change is warranted.  Relief denied.  

The Applicant contends his post-service conduct warrants consideration for an upgrade in his characterization of service at discharge to Honorable.  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.  Besides the Applicant’s statement on the DD Form-293, he provided a letter of reference from an employer, certificates of completion of training, and a certificate documenting church commitment.  The Applicant should be aware that 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.  The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief; accordingly, 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