ex-TMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20110111
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 3630605 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19950224 - 19950628  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19950629	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970205	Highest Rank/Rate:  TMSA
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  1.5 (2)	Behavior:  2.0 (2)	OTA:  2.08

Awards and Decorations (per DD 214):	

Period of CONF:  

NJP:  

- 19960830:	Article  (Unauthorized absence), 2 specifications
	Specification 1: Failure to go to appointed place of duty, working party on or about 19960731
	Specification 2: Unauthorized absence 0530-1030, 19960817 
	Awarded:     Suspended:    Vacated 19960926

- 19960926:	Article 86 (Unauthorized absence), 2 specifications
	Specification 1: Failure to go to appointed place of duty, restricted muster on or about 1230, 19960902 
	Specification 2: Failure to go to appointed place of duty, restricted muster on or about 1100, 19960908 
	Article 92 (Disobeying a lawful order on or about 19960912) 
	Awarded:     Suspended:    Vacated 19961127

- 19961127:	Article 91 (Disrespectful in language toward QM3), 2 specifications 
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19960906:	For violation of Article 86, failure to go at the time prescribed to appointed place of duty, to wit: working party on board USS MCKEE (AS-41) on or about 19960731; Article 86, unauthorized absence from USS MCKEE (AS-41) from 0530-1030, 19960817.        

Administrative Corrections to the Applicant’s DD 214

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

	  “MILPERSMAN 3630605”
	
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 14, effective 3 October 1996 until 12 December 1997, Article 3630605, 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 91 and Article 92.  

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 the characterization of his service at discharge to Honorable in order to receive Department of Veterans Affairs (VA) benefits.

2.	Decisional issues:  The Applicant contends that his discharge characterization of service, as received, was inequitable; his misconduct of record was an isolated incident with 24 months of previous honorable service with no other adverse actions.  

Decision

Date:  20110407	        	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; in addition, 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’s record of service reflects entry into the military without waiver at age 17 for a 4 year contract with no extension.  He enlisted with a guaranteed training program for Torpedoman’s Mate rating.  Throughout his enlistment period, the Applicant received one NAVPERS 1070/613 retention-counseling warning.  The Applicant’s period of enlistment under review included three nonjudicial punishments for violation of the following Articles of the Uniform Code of Military Justice:  

•	Article 86 (Absence without leave, specifically, 3 specifications of failure to go to his appointed place of duty)
•	Article 86 (Absence without leave, specifically, absented himself from his unit without authority)
•	Article 91 (Insubordinate conduct toward a petty officer, specifically, 2 specification of contempt and disrespectful language)  
•	Article 92 (Failure to obey a lawful order or regulation, specifically, failure to obey other orders).
 
The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 02 December 1996.  The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) and Misconduct (Pattern of Misconduct) in accordance with Article 1910-140.  The Applicant was further notified that the command was recommending he be separated with an Under Other Than Honorable Conditions characterization of his service at discharge.  The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged – in writing – that he understood that the least favorable characterization of service at discharge that he could receive was Under Other Than Honorable Conditions.  He further acknowledged his rights and elected to waive his right to consult with qualified legal counsel, to request an administrative hearing board, and to submit a statement to the Separation Authority for consideration in his case.  On 10 January 1997, the Command submitted its recommendation for separation to the Separation Authority, strongly recommending separation due to his continued lack of respect of authority and detriment to good order and discipline of the command.  On 19 January 1997, the Separation Authority approved the recommendation for separation, designating that the primary basis for separation be MISCONDUCT (Commission of a Serious Offense) – having determined that the evidence of record supported both bases for discharge - and that the characterization of service, as recommended, was warranted.  The Applicant was discharged on 05 February 1997 with an Under Other Than Honorable Conditions characterization of his service; he was advised that he was not recommended for future re-enlistment and was assigned a reentry code of RE-4 on his DD Form 214.                 

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for VA benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. 

:  (Decisional) ()  .  The Applicant contends that his discharge characterization of service, as received, was inequitable; his misconduct of record was an isolated incident with 24 months of previous honorable service with no other adverse actions.  Article 1910-140 of the MILPERSMAN specifies that a service member may be involuntarily separated based on the establishment of a pattern of misconduct when, during the current enlistment, they have two or more nonjudicial punishments, courts-martial, or civil convictions (or combination thereof) and they have violated a NAVPERS 1070/613 counseling/warning addressing their misconduct.  The Applicant’s record of performance and conduct reflected a documented pattern of misconduct with three nonjudicial punishments of record.  Additionally, the Applicant’s service record documents that he was counseled – formally – regarding possible separation if he failed to take corrective actions and comply with the expected standards of conduct of a Sailor in the United States Navy.  The Applicant’s second and third nonjudicial punishment violated that counseling warning.  As such, the NDRB determined that the Applicant had established a pattern of misconduct as specified by the MILPERSMAN and warranted separation.  

In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated based on the commission of a serious offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  The Applicant’s specific violation of Articles 91 and 92 of the UCMJ both warranted a punitive discharge and confinement for up to six months, if adjudicated at trial by court-martial.  Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based the commission of a serious offense as a primary basis for discharge.  Moreover, despite a servicemember’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  Relief based on propriety, denied.    

A service member’s characterization of service is founded on the recognition of his 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 acceptable 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.  However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Based on the seriousness of the offense and the pattern of misconduct established by the misconduct of record, the Command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.  Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  The NDRB found the characterization of the Applicant’s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  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