ex-ASAA, USN

Current Discharge and Applicant’s Request

Application Received: 20091215
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)	20050405 - 20050908  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050909	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090306	Highest Rank/Rate: ASAN
Length of Service:   Year(s)     Month(s)   28 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  3.4 (5)	Behavior:  2.2 (5)	OTA:  2.83 (5)
Awards and Decorations (per DD 214):	MARKSMAN SS  

Periods of UA/CONF:  

NJP:  

- 20070529:	Article  (Larceny), 3 specifications
	Specifications 1-3: NFIR, 20070508
	Awarded:  (45 days)  Suspended:  

- 20090126:	Article  (Drunken Driving)
	Awarded:   (60 days)  Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20060509:	NFIR (For failing to maintain physical readiness standards as stated/extracted from Administrative Separation Package Commanding Officer comments).

- 20060911:	NFIR (extracted from Administrative Separation package list of enclosures).

- 20070531:	For violation of UCMJ Article 121 (3 specifications) - Larceny as evidenced by your CO’s NJP of 29 May 2007.

Administrative Corrections to the Applicant’s DD 214

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

	  “GENERAL (UNDER HONORABLE CONDITIONS)”

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 111, 121.

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

Applicant’s Issues

1.	Applicant seeks an upgrade to reenlist in the U.S. Navy Reserve.
2.	Applicant contends his discharge was inequitable based on his record of service.
3.	Applicant contends his post-service achievements are more indicative of his true character.

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 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) retention warnings (9 May 2006: for failure to maintain physical readiness standards; 11 Sep 2006: NFIR; 31 May 2007: for violation of UCMJ Article 121 - Larceny, 3 specifications) and   for  of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken driving, specifics NFIR) and Article 121 (Larceny, 3 specifications NFIR, 8 May 2007).  The record also indicated the Applicant had failed three physical fitness assessment (PFA) cycles in the preceding four-year period.  Violation of UCMJ Articles 111 and 121 are considered commissions of a serious offense and are punishable by up to six months confinement and a Bad Conduct Discharge, if awarded as a result of trial by punitive courts-martial (Special or General).  Based on the facts and circumstances regarding the Applicant’s case,  command opted instead to administratively process  for separation.  When notified of administrative separation processing using the  procedure, the Applicant elected his right to submit a written statement but waived  rights to consult with a qualified counsel and request a General Court-Martial Convening Authority review.

:  (Nondecisional)  The Applicant seeks an upgrade to reenlist in the U.S. Navy Reserve.  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 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.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his record of service.  In his statement to the Board, the Applicant mentions three reasons why he believes his discharge character of service was inequitable: (1) his medical waiver that should have prevented him from taking the Fall 2008 PFA; (2) the larceny charges for which he was found guilty at NJP were never pursued by the police in civil court; (3) the DUI for which he received NJP was a first offense and should have only been dealt with at NJP.

OPNAVINST 6110.1H governs the U.S. Navy Physical Readiness Program and states that the Physical Fitness Assessment consists of two portions: Body Composition Assessment (BCA) and Physical Readiness Test (PRT).  The Board thoroughly examined the Applicant’s record and found that he did fail the BCA portion of two PFA cycles, Spring 2006 and Fall 2006, which consists of height/weight and body fat percentage measurements.  The Applicant was granted a medical waiver on 15 Sep 2008, which indicated he was recommended for waiver (CO has final decision on granting waiver) from the PRT portion of the PFA, but not the BCA portion.  Therefore, he would still have been expected to maintain body fat and height/weight standards and pass those requirements during the semi-annual PFA process.  

The Applicant went to commanding officer’s NJP on 29 May 2007 and was found guilty of 3 counts of larceny.  A guilty finding at NJP for crimes committed off base and/or off-duty does not require adjudication by civil courts or even referral of charges on the accused by civil authorities.  The CO, after reviewing all the evidence to include questioning the accused and any available witnesses, evaluates the facts and circumstances surrounding the case and may choose a finding of guilty based on a “preponderance of the evidence” versus the more restrictive “beyond a reasonable doubt” that is a requirement of a court.  As such, the Board, unless provided credible evidence that questions propriety or equity, must presume regularity in the CO finding the Applicant guilty of larceny and subsequently processing him for administrative separation due to commission of a serious offense.  

The Applicant was arrested for driving under the influence of alcohol for which he was found guilty at NJP on 26 Jan 2009.  DUI is a violation of UCMJ Article 111, which is considered a serious offense per the Manual for Courts-Martial, and is punishable by six months of confinement and a Bad Conduct discharge, if awarded as a result of trial by courts-martial (Special or General), or warrants processing for administrative separation per the U.S. Navy Military Personnel Manual (MILPERSMAN).  After careful consideration, the Board determined that the Applicant’s command was acting within its authority and in accordance with the applicable orders and directives in effect at the time and found no evidence of impropriety or unfairness.  Therefore, this issue does not provide a basis for which relief can be granted.

:  (Decisional) ()  .  The Applicant contends his post-service achievements are more indicative of his true character.  The Applicant provided documentation to the Board that included a vocational school training program enrollment verification letter (with anticipated graduation date) and a personal letter from the Applicant.  Though not submitted, documentation could have included: verifiable employment history; letter(s) of recommendation from his employers; ; ; evidence of alcohol rehabilitation; 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 (as 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 considering the facts surrounding this case and the documentation submitted by the Applicant, 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 administrative separation 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