ex-MM2, USN

Current Discharge and Applicant’s Request

Application Received: 20100804
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)	20031121 - 20040308  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040309	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090116	Highest Rank/Rate:  MM2
Length of Service:   Year(s)     Month(s)   8 Day(s)
Education Level:  +	AFQT:  94
Evaluation Marks:	Performance:  3.2 (6)	Behavior:  3.2 (6)	OTA:  3.25

Awards and Decorations (per DD 214):	    ESWS

Periods of UA/CONF:  

NJP:  
- 20080730:	Article  (Failure to obey order or regulation)
	Awarded: RIR (to E-4)     Suspended:   (suspend 6 months)

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY MARINE CORPS ACHIEVEMENT MEDAL, NAVY GOOD CONDUCT MEDAL, ENLISTED SUBMARINE WARFARE SPECIALIST BREAST INSIGNIA, PISTOL SHARPSHOOTER RIBBON”

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:	

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to obtain veteran education benefits.
2.	Applicant seeks a discharge upgrade to improve employment opportunities. 
3.	Applicant contends his discharge was inequitable based on an isolated incident in otherwise honorable service.
4.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20120103		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 did reflect one nonjudicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, or dereliction in the performance of duties).  The record did contain an Evaluation and Counseling Report (covering the period 16 Mar 2008 - 4 Aug 2008) that revealed a marking of 1.0 for Military Bearing/Character and the following comments: “(the Applicant) has been a major contributor to Reactor Laboratory Division’s success, but lacks personal integrity…his lack of personal integrity and poor judgment have prevented him from being a successful Sailor.”  Based on the circumstances involved with the Applicant’s conduct and/or the offense(s) he committed, his command administratively processed  for separation in accordance with the Naval Military Personnel Manual (MILPERSMAN) section 1910-156 (Unsatisfactory Performance).  The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was separated from the Navy on 16 Jan 2009 with a General (Under Honorable Conditions) discharge due to Unsatisfactory Performance.

Issues 1-2:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits and to improve employment opportunities.  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on an isolated incident in otherwise honorable service.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 92 meets this standard.  Additionally, section 1910-156 of the MILPERSMAN states a service member may be separated when they are unqualified for further Naval Service as demonstrated by one or more enlisted performance evaluations with 1.0 marks for any performance trait, or denial or revocation of security clearance (for cause), thereby precluding the ability to perform duties in assigned rating.  Moreover, the Applicant was fully aware of the high standards of personal and professional conduct expected of Sailors within the nuclear power field.  During his enlistment accession processing, which included a guarantee for the nuclear power job specialty field, the Applicant signed his acknowledgment (5 Jan 2004) of the character expectations of Sailors admitted into the nuclear field; the acknowledgment stated, “Personnel in the nuclear field program must continually demonstrate by their professional performance, academic achievement, and military behavior that they possess the ability, maturity, personal reliability, and integrity to complete the demanding training program and serve successfully as nuclear propulsion plant operators in the fleet.  Consequently, any event 

which cast serious doubt on the member’s ability to continually satisfy these high standards of conduct may result in that member’s disenrollment from the nuclear field program.”  Additionally, after arriving at the Naval Nuclear Power Training Command, the Applicant again was advised in writing (10 May 2004) of the expectations of Sailors in the nuclear power field.  He signed his understanding of those requirements, which included, “The responsibility I will carry in the fleet as a nuclear trained petty officer will require not only technical competence but also total reliability and unquestionable integrity.  Any actions that reflect poorly upon my personal integrity will weigh heavily in evaluations made regarding my potential as a future nuclear propulsion plant operator.”  The record clearly reflects his willful misconduct (cheating on an exam) and demonstrated he was unfit for further service in the nuclear field.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when a Sailor’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for an Honorable upgrade to his characterization of service.

Issue 4:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  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.  The Applicant provided a personal statement and personal and employer character letters of reference as evidence of post-service accomplishments.  Although the Applicant’s efforts to improve his life are noteworthy, they need to be more encompassing.  The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee a discharge upgrade as each discharge is reviewed by the Board on a case by case basis.  After review of all the available evidence in the service record, and the additional documentation provided by the Applicant, the Board determined this issue did not provide a basis for which relief could be granted.  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 for additional information.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 19 May 2008 until 
9 November 2009, Article 1910-156, SEPARATION BY REASON OF UNSATISFACTORY PERFORMANCE.

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.

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