ex-FC2, USN

Current Discharge and Applicant’s Request

Application Received: 20100421
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)	20050910 - 20051212  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051213	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090904	Highest Rank/Rate:  FC2
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  16 - BS in Electronics Engineering Technology	AFQT:  72
Evaluation Marks:	Performance:  4.2 (5)	Behavior:  3.6 (5)	OTA:  3.69

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

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	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.  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, Article 92 and Article 134.  

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an “automatic” upgrade in the characterization of his service at discharge due to waiting the “required” six months since discharge.  

2.	Decisional issues: The Applicant contends that his record of service, with no punishments of record, warrants an upgrade in the characterization of his service to Honorable.

Decision

Date:  20110708	          	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; additionally, the NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant enlisted in the United States Navy at age 25 for a four-year enlistment with a 24-month extension under a guarantee of training in the Advanced Electronics Computer Fields Program.  The Applicant was a college graduate with a Bachelor of Science degree in Electronics Engineering Technology and was qualified and promoted to E-3 upon enlistment.  The Applicant completed three years and eight months of his six-year contractual obligation.  During the Applicant’s period of service, he did not receive any NAVPERS 1070/613 (Page 13) retention-counseling warnings or any judicial or non-judicial punishments of record.  However, at the time of the Applicant’s administrative separation, he was pending legal action for alleged violations of the Uniform Code of Military Justice (UCMJ), specifically, Article 92 (Failure to obey a lawful order from a Leading Petty Officer) and Article 134 (Communicating a threat).  At the time of the pending charges for misconduct, the Applicant was ordered to a Command-Directed Mental Health Evaluation and the Commanding Officer notified him that his access to classified information was suspended for cause.

Due to the nature of the pending charges for violations of the UCMJ, the Applicant was notified that he was being processed for discharge in accordance with the Naval Military Personnel Manual (MILPERSMAN) for Misconduct - Commission of a Serious Offense (Article 1910-142).  The Applicant was notified of the proposed recommendation for separation on 25 August 2009; he acknowledged - in writing - his understanding of the proposed basis for separation and that the least favorable characterization of service was General (Under Honorable Conditions).  The Applicant further elected to exercise his right to consult with qualified legal counsel, but opted not to submit written matters in rebuttal to the Separation Authority.  Due to the least favorable characterization of service proposed and the limited time in service, the Applicant did not warrant an administrative discharge hearing board.  On 01 September 2009, the Applicant signed his written notification, verifying that all his actions related to the notification were complete.  On 01 September 2009, the Separation Authority reviewed the Command’s recommendation for separation and determined that a preponderance of the evidence supported separation pursuant to Article 1910-142.  The Separation Authority further directed that the Applicant receive a General (Under Honorable Conditions) characterization and be assigned a re-entry code of RE-4 (not recommended for reenlistment).  The Applicant was discharged on 4 September 2009 with a narrative reason for separation of MISCONDUCT (SERIOUS OFFENSE).

Besides his DD Form 293 and personal statement, the Applicant provided an extensive package of documentation of his service as evidence in support of his request for consideration by the NDRB.

Nondecisional Issues.  The Applicant seeks an “automatic” upgrade in the characterization of his service at discharge due to waiting the “required” six months since discharge.  There is no requirement, or law, that authorizes re-characterization solely on the issue of waiting six months since date of discharge for an automatic upgrade.  The documentation provided to service members being administratively separated advises a prospective applicant to wait at least six months to allow their records to be received by the service headquarters and the Department of Veterans Affairs in order to ensure a complete review by the NDRB.  A former service member has 15 years from the date of discharge to petition the NDRB for consideration of a change or upgrade based on matters regarding either the propriety or the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional Issues) ()  .  The Applicant contends that his record of service, with no punishments of record, warrants an upgrade in the characterization of his service to Honorable.  The NDRB reviews the propriety and equity of an Applicant’s discharge, individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Propriety - In accordance with the MILPERSMAN, a service member may be discharged - involuntarily - when their conduct or performance of duties meets one of the established reasons for separation.  In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated for misconduct due to the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense(s) would warrant a punitive discharge if adjudicated at trial by court-martial.  The Applicant’s pending charges for violation of Articles 92 (Disobedience of a lawful order from a Leading Petty Officer) and 134 (Communicating a threat) of the UCMJ each warrant a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge) and a maximum confinement of up to three years, if adjudged at trial by a special or general court-martial.  Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, may warrant separation from the Navy to maintain proper order and discipline. 
The commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense(s) must be substantiated by a preponderance of evidence.  The Separation Authority reviewed the Command’s recommendation for separation and determined that a preponderance of the evidence did support a determination that the Applicant had engaged in the misconduct specified and did establish the minimum requirement for discharge based on Misconduct (Commission of a Serious Offense).  The Separation Authority determined that separation in the Applicant’s case was proper and further, that the proposed characterization of service - General (Under Honorable Conditions) - was warranted.  
Based on a review of the evidence of record and documentation provided by the Applicant, the NDRB determined that there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge and that a change based on propriety is not warranted.  As such, relief based on propriety is denied.  

Equity - When administratively discharged before the end of obligated service, characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  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.  Based on the seriousness of the offenses, the Applicant’s length of service, his in-service performance and conduct, coupled with the psychiatric evaluation and diagnosis of an Adjustment Disorder with disturbances of emotion, and the Applicant’s undisclosed, fraudulent pre-service mental health history of treatment, the NDRB determined that the Applicant’s service was honest and faithful.  However, the significant negative aspects of his conduct or performance of duty did outweigh the positive aspects of his service record.  The NDRB determined that the characterization of the Applicant’s discharge was equitable and that his separation from the Naval Service was consistent with others in similar circumstances; an upgrade to an Honorable characterization of service at discharge would be inappropriate.  Accordingly, relief based on matters of equity 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 MISCONDUCT (SERIOUS OFFENSE).  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