ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20100504
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)	20070228 - 20070404  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070405	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090423	Highest Rank/Rate:  SN
Length of Service:   Years     Months   19 Days
Education Level:  	AFQT:  38
Evaluation Marks:	Performance:  2.6 (2)	Behavior:  1.3 (2)	OTA:  2.22

Awards and Decorations (per DD 214):	  

Periods of UA/CONF:  

NJP:  3

- 20070621:    Unable to determine specific Articles violated [report of NJP extracted from NAVPERS 1070/613 retention counseling warning regarding incident complaint report and subsequent NJP for recruit-to-recruit contact] 
	Awarded: Unable to determine awarded punishment

- 20080707:	Article , (General article, communicating a threat), 2 specifications) 
	Article 89, (Disrespect toward a superior commissioned officer)
	Article 91, (Insubordinate conduct toward a petty officer)
	Awarded:     Suspended:   

- 20090224:	Article 92, (Failure to obey order or regulation)
	Article 116, (Riot or breach of peace)
	Article 128, (Assault consummated by a battery)
	Awarded:    Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  1

- 20070622:	For corrective actions following CO’s NJP on 20070621 for recruit to recruit contact.

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	  “MISCONDUCT (SERIOUS OFFENSE)”

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 92 and 128.

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 and change to reentry code (RE Code) in order to facilitate reenlistment in the Armed Services.

2.	Decisional issues: The Applicant contends that his discharge was inequitable in that personal and mental issues, coupled with disappointment in his career progress, prevented the Applicant from continuing successfully with his enlistment and contributed to his misconduct of record.

Decision

Date:  20110804             	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 24 for a four year enlistment with no extensions under a guarantee of training in the Seaman Apprenticeship Training Program.  The Applicant completed two years of his four-year contractual obligation before being discharged for misconduct.  During the Applicant’s period of service, he received one NAVPERS 1070/613 (Page 13) retention-counseling warning and three nonjudicial punishments for violations of the Uniform Code of Military Justice.  The Applicant’s violations of the UCMJ include:
•	Article 89 (Disrespect to a Superior Commissioned Officer)
•	Article 91 (Insubordinate Conduct to a Petty Officer)
•	Article 92 (Failure to Obey a Lawful Order or Regulation)
•	Article 116 (Riot or Breach of Peace)
•	Article 128 (Assault, Consummated by a Battery)
•	Article 134 (General Article - Communicating a Threat).  
Due to the nature of the misconduct of record, coupled with the repetitive misconduct of record, 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package in the Applicant’s service record.  The NDRB was unable to review the Applicant’s election of rights during the separation process, however, the Applicant’s DD Form 214 documents a separation code of “HKQ” - administrative discharge board waived.  On 01 April 2009, the Separation Authority reviewed the chain of command’s recommendation for separation and determined that a preponderance of the evidence supported separation and further directed that the Applicant receive an Under Other Than Honorable Conditions characterization of service and that he be assigned a re-entry code of RE-4 (not recommended for reenlistment).  The Applicant was discharged on 23 April 2009 with a narrative reason for separation of MISCONDUCT (SERIOUS OFFENSE).
 
Nondecisional Issues.  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate his reenlistment in the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code.  Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “RE” code is, in itself, a bar to reenlistment.

(Decisional Issues) ()  .  The Applicant contends that his discharge was inequitable in that personal and mental issues, coupled with disappointment in his career progress, prevented the Applicant from continuing successfully with his enlistment and contributed to his misconduct of record.  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 offenses would warrant a punitive discharge if adjudicated at trial by court martial.  The Applicant’s violation of Articles 89, 91, 92, 128, and 134 of the UCMJ each warrant punitive discharge (Bad Conduct Discharge/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 may warrant separation from the Navy to maintain proper order and discipline.  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 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 - The Applicant contends that his discharge was inequitable in that personal and mental issues, coupled with disappointment in his career progress, prevented the Applicant from continuing successfully with his enlistment and contributed to his misconduct of record.  While the Applicant may feel his youth, immaturity, and personal and mental issues were the underlying cause of his misconduct, he provided no documentation or explanation in support of this claim.  The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably.  While we understand some members may be less mature than others and some may experience emotional difficulties, the NDRB does not view a member’s claims of immaturity, emotional issues, or mental issues to be a mitigating factor or a sufficient reason for misconduct without a valid medical diagnosis defining the underlying condition and its relation to his misconduct.

When administratively discharged early, 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.  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.  Moreover, 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 offenses, the repetitive nature of his misconduct, the Applicant’s length of service, and his documented in-service performance and conduct, the NDRB determined that the Applicant’s service was characterized by one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  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.  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