ex-AT2, USN

Current Discharge and Applicant’s Request

Application Received: 20091120
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)	19920324 - 19920922  	Active:		19920923 - 19960919  

Period of Service Under Review:
Date of Current Enlistment:  19960920	Age at Current Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20011010	Highest Rank/Rate:  AT2
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  50
Evaluation Marks:	Performance:  3.3 (6)	Behavior:  2.8 (6)	OTA:  3.26

Awards and Decorations (per DD 214):	, (2),  (2), , ,  (2), ,  (2)

Periods of UA/CONF:  

NJP:  

- 19961202:	Article  (Assault)
	Awarded:     Suspended:  

SCM:  	SPCM:  

CC:  

- 20010205:	Offense:  Aggravated child abuse - commit aggravated battery on child/using deadly weapon
	Sentence:  Probation for 1 year, special conditions, complete Anger Violence Intervention Program, fined $125.00.

Retention Warning Counseling:  

- 20000504:	For failure to meet the physical fitness readiness standards.

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 920923 UNTIL 960919”
	  “MILPERSMAN 1910-144”
  “GKB”		
	  “MISCONDUCT”
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.  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 128.

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.	Decisional issue: The Applicant contends that the discharge characterization received was not equitable to the circumstances of his discharge; as such, he seeks an upgrade from General (Under Honorable Conditions) to an Honorable characterization of his service.  
Decision

Date:  20110201		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 identified one decisional issue for the NDRB’s consideration.  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 entered military service at age 21, with a waiver to enlistment standards for pre-service drug use (marijuana).  The Applicant completed his initial four-year enlistment and was honorably discharged and immediately re-enlisted for a second six-year enlistment, with no extensions.  The Applicant’s military service record during this period of enlistment in review includes one NAVPERS 1070/613 retention-counseling warning, one nonjudicial punishment for violation of Article 128 (Assault) of the Uniform Code of Military Justice, and one civilian conviction.    

The NDRB reviewed the Applicant’s discharge package.  The Applicant was separated administratively from the naval service due to Misconduct (Civilian Conviction) pursuant to Article 1910-144 of the Naval Military Personnel Manual (MILPERSMAN).  The basis for separation was his arrest and conviction by local civilian law enforcement officials for aggravated child abuse, consummated by battery on a child using a deadly weapon.  Based on the civilian conviction of child abuse, the local civil authorities placed the Applicant on probation for one year and ordered him to participate in appropriate intervention programs and rehabilitative training programs.  

The Applicant was notified of the proposed separation with a dual basis for separation: Article 1910-144, Misconduct (Civilian Conviction) and Article 1910-140, Misconduct (Pattern of Misconduct).  The Commanding Officer further advised the Applicant that the least favorable characterization of service he could receive, if discharged, was Under Other Than Honorable Conditions.  When notified of the proposed separation action, the Applicant elected to consult with a qualified legal counsel and further elected to exercise his right to an administrative discharge hearing board and to submit written matters for the Separation Authority’s review.  

On 17 September 2001, the Discharge Hearing Board was properly constructed and convened to hear the Applicant’s petitions as elected by the Applicant.  By a vote of 3 to 0, the Administrative Discharge Board determined that a preponderance of the evidence supported a finding of misconduct by civilian conviction and a finding of misconduct by an evidenced pattern of misconduct.  The Board further recommended, by a vote of 3 to 0, that the Applicant be separated from the naval service for each finding of misconduct.  By a vote of 2 to 1, the Discharge Board recommended that the Applicant’s characterization of service at discharge be General (Under Honorable Conditions).              

The Separation authority concurred with the findings of the Administrative Discharge Board and, on 03 October 2001, directed that the Applicant be discharged and that the primary basis for separation on the Form DD-214 be Misconduct (Civilian Conviction) as evidenced by the civilian conviction on 05 February 2001.  The Separation Authority further directed that the Applicant be discharged with a General (Under Honorable Conditions) characterization of his service and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment. 

The Applicant provided no additional documentation to rebut any presumption of regularity in governmental affairs by the NDRB or to substantiate or justify his issue.

:  (Decisional Issues) ()  .  The Applicant contends that the discharge characterization received was not equitable due to the circumstances of his discharge; as such, he seeks an upgrade from General (Under Honorable Conditions) to an Honorable characterization of his service.  The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  In regards to propriety, the Applicant’s non-judicial punishment, coupled with the Page 13 retention counseling-warning, and the civilian conviction properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 1910-140 of the MILPERSMAN.  Additionally, the conviction by civil authorities and assignment to probation for 1 year satisfied the separation requirements established for separation based on Misconduct (Civilian Conviction) pursuant to Article 1910-144 of the MILPERSMAN.  The NDRB found no issue of impropriety; as such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate.  No relief provided.

Characterization of service is founded on the recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service 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 appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  The Applicant’s record of performance and conduct reflected a documented pattern of misconduct.  Additionally, the Applicant’s service record reflects that he had been counseled formally for spousal abuse and child abuse on numerous occasions throughout his periods of enlistment - with at least two substantiated findings of physical abuse on his spouse and child.  Prior to the civilian arrest, the Family Advocacy Program Case Review Committee had recommended separation due to substantiated incidents of physical abuse; the Command had withheld separation action due to the Applicant’s Limited Duty medical status resulting from a motorcycle accident with accompanying diagnosis of Traumatic Brain Injury.  

The Applicant’s treating physicians had submitted a local medical evaluation board (MEB) to the Navy Physical Evaluation Board (PEB) for a determination of the Applicant’s fitness for duty.  The PEB terminated the case on 25 June 2001 in order to allow adequate time for convalescence - post left shoulder surgery - and further requested a resubmission with an updated orthopedic addendum and updated neuropsychiatric testing.  When the PEB terminates a case, the local MEB report, to include all supporting documents, is returned to the originating Medical Treatment Facility for the specified corrective action and resubmission, if warranted.  Department of Defense (DOD) disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4 D (effective 1998 to 2002) stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the PEB, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The PEB case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  The Applicant was notified of the command’s intent to administratively separate him for misconduct with an Under Other Than Honorable Discharge on 01 Aug 2001.  This notification of separation suspended the disability evaluation process by the PEB until final administrative action was completed.  In the Applicant’s case, he was discharged due to misconduct; as such, the medical board report was filed in his terminated health record with no final action being taken.    

The NDRB determined that mitigation for Traumatic Brain Injury was taken into consideration in the final determination of the Applicant’s characterization of service; a more consistent characterization of discharge, as given to others in similar circumstances, would have been Under Other Than Honorable Conditions.  The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect a significant departure from the conduct expected of service members; as such, the awarded characterization of service, as issued, was equitable.  The NDRB determined that the characterization of service at discharge was appropriate as issued and that an upgrade would be inappropriate; accordingly, relief as requested is 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