ex-ABHAR, USN

Current Discharge and Applicant’s Request

Application Received: 20100923
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)	20050422 - 20060108  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060109	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071121	Highest Rank/Rate:  ABHAA
Length of Service:   Year     Months   13 Days
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  2.0 (1)	Behavior:  1.0 (1)	OTA:  1.33

Awards and Decorations (per DD 214):	NDSM GWOTSM SSDR OSR

Period of CONF:  NFIR

NJP:  1

- 20070426:	Article 86 (Absence without leave, 2 specifications, 20070418 and 20070424)
	Article 92 (Failure to obey order or regulation, dereliction of duty, 20070417)
	Awarded: FOP RIR (to E-1) CCU 30 days   Suspended:  

SCM:  1

- 20070920:	Article  (Absence without leave, 2350 on 20070906 - 0130 on 20070907)
	Article 91 (Insubordinate conduct toward a Second Class Petty Officer, 20070912)
	Article 92 (Failure to obey order or regulation, dereliction of duties, 20070906)
	Sentence: FOP CONF 25 days

SPCM:  NONE	CC:  NONE 

Retention Warning Counseling:  2

- 20060131:	For deficiencies in your performance and/or conduct as evidenced by numerous negative entries on your Recruit Personnel Data Record (Hard Card) to include: failure to adapt, failure to follow instructions, lack of attention to details, and substandard performance.

- 20070426:	For absence without leave (Art 86) and failure to obey order or regulation (Art 92).

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 11, effective 26 April 2005 until 11 June 2008, 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 91 and 92.

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

Applicant’s Issues

1.	Applicant contends his discharge was inequitable, because he believes he suffered more punishment than was deserved for his misconduct. 
2.	Applicant contends his discharge was improper due to command administrative and legal impropriety. 

Decision

Date:  20120112		Location:  Washington D.C.	Representation:  none

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warnings for deficiencies in performance and conduct while at recruit training (31 Jan 2006) and violation of the Uniform Code of Military Justice (UCMJ) Articles 86 (Absence without leave) and 92 (Failure to obey an order or regulation) on 26 Apr 2007.  The record also reflected one nonjudicial punishment for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications: 0715, 18 Apr 2007, missed morning muster and 1300, 24 Apr 2007, UA from General Quarters) and Article 92 (Failure to obey order or regulation, dereliction of duty, 17 Apr 2007, asleep at cleaning station) and one Summary Court-Martial for violations of the UCMJ: Article  (Absence without leave, from work section, 2350, 6 Sep 2007 to 0130, 7 Sep 2007), Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, 12 Sep 2007, disrespectful in language to Second Class Petty Officer), and Article 92 (Failure to obey order or regulation, dereliction of duties, 6 Sep 2007, failed to stay within installed safety line).  Based on the offenses committed by the Applicant, his command administratively processed him for separation per the Naval Military Personnel Manual (MILPERSMAN).  When notified of administrative separation processing (for commission of a serious offense and pattern of misconduct) using the administrative board procedure on 21 Sep 2007, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  On 11 Oct 2007, the Applicant’s Commanding Officer endorsed his request for administrative separation of the Applicant stating, “In less than five months, (the Applicant) has been to both NJP and Summary Court-Martial for his misconduct.  His multiple UAs have not only posed a definite risk to training, but have directly endangered the welfare of this Sailor and thousands of his shipmates when engaged in operations at sea.  When found asleep, he was insubordinate to the Petty Officer trying to correct the situation.  He is a danger to operations and his complete disregard for authority and regulations demonstrates that he has no potential for future honorable service.”  On 26 Oct 2007, the Separation Authority directed that the Applicant be separated with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).  The discharge was completed on 21 Nov 2007.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable, because he believes he suffered more punishment than was deserved for his misconduct.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline; violation of Articles 91 and 92 meet this standard.  This usually results in an unfavorable characterization of discharge, at a minimum, and a punitive discharge (Bad Conduct or Dishonorable) and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The command did not pursue a punitive discharge, but opted instead for the more lenient administrative discharge of the Applicant.  While in service, the Applicant had an opportunity to defend himself but he waived his right to submit a written statement or request an administrative board proceeding.  While he may feel his discharge was too harsh, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  Further, the Applicant did not submit any evidence with his application to overcome the government’s presumption of regularity in his administrative discharge for misconduct (serious offense).  An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  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, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper due to command administrative and legal impropriety.  In a letter to the NDRB, the Applicant further stated that he felt he was targeted by his chain of command (specifically by a Chief Petty Officer who did not like him) and that he was not afforded the right to seek counsel during his administrative discharge processing.  The Board conducted a detailed examination of the records to ascertain the circumstances that led to his discharge and the discharge process to determine whether his discharge met the pertinent standards of equity and propriety.  The Board identified numerous instances of misconduct committed during the Applicant’s career in which the Applicant received Page 13 Retention Warnings (to include one warning received during recruit training), NJP, and a Summary Court-Martial.  The Board, however, could find no evidence to indicate command impropriety nor did the Applicant submit any evidence to question the presumption of regularity in this case.  Accordingly, with no evidence to rebut the presumption, the Board determined this issue to be without merit and 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 the administrative separation process, the Board found   Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS 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 his discharge.  The Applicant is directed to the Addendum for additional information.

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