ex-OS3, USN

Current Discharge and Applicant’s Request

Application Received: 20101109
Characterization of Service Received:  
Narrative Reason for Discharge:  SECRETARIAL AUTHORITY
Authority for Discharge:  MILPERSMAN 

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20000121 - 20000612  	Active:		20000613 - 20040610  
					20040611 - 20080608  

Period of Service Under Review:
Date of Current Enlistment:  20080609	Age at Enlistment:  
Period of Enlistment:   Years  Extension
Date of Discharge:  20100122	Highest Rank/Rate:  OS2
Length of Service:   Year(s)     Month(s)   14 Day(s)
Education Level:  	AFQT:  34 / 52
Evaluation Marks:	Performance:  3.5 (2)	Behavior:  2.5 (2)	OTA:  3.22

Awards and Decorations (per DD 214):	Rifle  Pistol      (2)     (3) ESWS
Periods of UA/CONF:  

NJP:  

- 20090610:	Article  (Assault)
	Awarded:  (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:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000613 UNTIL 080608”

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 1 June 2005 until Present, Article 1910-164, SEPARATION BY REASON OF BEST INTEREST OF THE SERVICE (BIOTS).

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.

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

Applicant’s Issues

1.	The Applicant contends his discharge was improper/inequitable based on an improper NCIS investigation.

Decision

Date:  20120216		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 one decisional issue 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  nonjudicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault, upon his spouse, by pushing and shoving his wife and grabbing her by the neck pushing her against the wall and choking her, resulting in bruising of her neck, o/o 27 Apr 2009).  The record also revealed that the Applicant obtained an enlistment waiver to join the Navy for a Mar 1993 arrest in which he was charged for assault on a female.  Based on the offense committed by the Applicant, his command administratively processed him for separation.  After initial notification of administrative separation processing (for commission of a serious offense and family advocacy rehabilitation failure) using the  procedure on 15 Jun 2009, the Applicant elected to exercise his rights to consult with a qualified counsel and request an administrative separation board.  On 1 Jul 2009, Administrative Separation Board (ASB) proceedings were conducted in order to determine whether the Applicant should be retained or separated from the Navy on the basis of commission of a serious offense (COSO) and/or Family Advocacy Program (FAP) Rehabilitation Failure.  The Applicant was represented by military counsel.  After review of all the available evidence, the ASB found the following: (By 3-0 vote) the preponderance of the evidence did not support commission of a serious offense; (By 3-0 vote) the preponderance of the evidence supports the Applicant as a FAP Rehabilitation Failure; (By 3-0 vote) the Board disagrees that the facts and circumstances warrant separation for commission of a serious offense; (By 3-0 vote) the Board agrees that the facts and circumstances warrant separation for FAP Rehabilitation Failure; (By 3-0 vote) the Board recommended that the Applicant be given a suspended separation for 12 months; (By 3-0 vote) the Board recommended an Under Other Than Honorable Conditions discharge, however, after being informed by the Recorder that the least favorable character of service allowed for a Best Interest of the Service separation was a General (Under Honorable Conditions) characterization of service, the recommendation was changed to reflect the least favorable characterization of General (Under Honorable Conditions).

Upon conclusion of the ASB process, the Applicant was re-notified of administrative separation processing (Family Advocacy Program Rehabilitation Failure and Best Interest of the Service) using the notification procedure on 17 Aug 2009.  The Applicant elected to exercise his rights to consult and submit a written statement.  On 20 Aug 2009, the Applicant submitted a statement to the Secretary of the Navy, via his chain of command, requesting retention in the Navy in accordance with the ASB’s recommendation for suspension of the administrative separation.  Also on 20 Aug 2009, the Applicant’s Commanding Officer (VX-30) submitted his endorsement to the chain of command on the ASB’s recommendations, stating, “On 27 Apr 2009, (the Applicant) was arrested by NBVC Point Mugu base police on a charge of domestic violence.  While at their home on NBVC Point Mugu at approximately 0115 in the morning, (the Applicant, 6’2” and 188 lbs) and his wife (5’1” and 130 lbs, and former USN enlisted) engaged in an argument regarding infidelity and financial difficulties that included verbal abuse and minor physical contact from both parties (i.e., minor pushing and grabbing of clothes), culminating in (the Applicant) grabbing his wife by the neck and pushing her up against the wall in their home, choking her.  As a result, (his wife) suffered bruising to her neck as detailed in the NCIS Investigative Report dated 26 May 2009.  The couple has three children living in the residence, none of which were involved in the altercation.  While attempting to leave the base, (the Applicant) was arrested at the main gate by base police.  (The Applicant) was released to the custody of the squadron duty Chief and was subsequently 

placed in the barracks under a Military Protective Order issued later that same day.  During the investigation of the incident, the Applicant admitted to committing the alleged acts.  The NCIS report of 26 May 2009 also presents evidence that this was not the first altercation between this couple that resulted in domestic violence.  In Nov 2008, (the Applicant) admitted to hitting his wife during an argument causing minor bruising to the tissue surrounding her eye.  This incident was unfortunately never reported to the command.  In Feb 2009, an altercation of escalating verbal abuse ensued that did again result in violence, however, the NBVC FAP counselors were involved and eventually determined that both (the Applicant) and his wife were at mutual fault for the argument.  (The Applicant) had begun attending FAP counseling when the Apr 2009 incident occurred.  These are the events that have occurred within (the Applicant’s) current enlistment (since Jun 2008), however, additional evidence within the NCIS report supports that repetitive cases of domestic violence within this marriage including choking have occurred as early as Sep 2004, shortly after the couple was married during his tour on the USS Halsey (DDG-97) stationed in San Diego, CA.  Another incident occurred in Oct 2005 resulting in (the Applicant’s) arrest by the San Diego Police Department.  This incident forced (the Applicant) into a FAP rehabilitation program that he completed in Jul 2006.  An Administrative Board was convened on 1 Jul 2009 for the reasons of Misconduct – Commission of a Serious Offense as evidenced by assault and battery on member’s spouse and, Separation by reason of Family Advocacy Program (FAP) Rehabilitation Failure as evidenced by assault and battery on member’s spouse.  Although the board did not find that the preponderance of the evidence supported the commission of a serious offense, they did unanimously agree that the evidence did support a FAP Rehabilitation Failure.  In accordance with MILPERSMAN 1910-162, a service member may be processed for separation due to a FAP Rehabilitation Failure when they complete a rehabilitation and counseling program and “subsequently engage in abusive behavior.”  This determination is further supported by the Naval Base Ventura County Family Advocacy Program Case Review Committee in their determination that this case of spouse physical abuse to be closed with a designation as a treatment failure.  Regarding the findings of the Administrative Separation Board, I disagree with the board’s findings, and recommendation for suspended separation as listed in paragraphs e and f above.  It is my opinion that the board failed to recognize the overwhelming weight of evidence provided in the NCIS report that support the commission of a serious offense as defined by MILPERSMAN 1910-142.  (The Applicant) admitted to committing the acts and pled guilty to violating UCMJ Article 128 (Assault consummated by battery) at Non-Judicial Punishment on 10 Jun 2009 for the events that occurred on 27 Apr 2009.  (The Applicant’s) admission makes a finding that such offense did not occur nonsensical.  Due to the nature of this case I cannot support the board’s recommendation for a suspended separation for 12 months.  Suspending this separation would damage the good order and discipline within my command and potentially undermine the Navy’s position against domestic violence.  I strongly recommend separation at the earliest convenience of the service with a characterization of General (Under Honorable Conditions).  Having conferred with PERSCOM on the appropriate course of action, Notification procedures in accordance with MILPERSMAN 1910-402 were initiated on 17 Aug 2009 informing (the Applicant) of my decision to conduct separation processing by reason of Best Interest of the Service due to his FAP Rehabilitation Failure in association with domestic violence IAW MILPERSMAN 1910-162.  I have reviewed the Applicant’s statement.  I disagree with the arguments contained in the letter for all of the various reasons stated above.  I will note, however, that I see no due process concerns with initiating a BIOTS separation.  My recommendation for separation is based on facts of this case, which includes his own statements of admission made to the NCIS investigators, the FAP counselors, and myself during NJP.”  On 31 Aug 2009, the Commander Naval Test Wing Pacific endorsed the Applicant’s administrative separation package.  On 10 Sep 2009, the Commander, Naval Air Warfare Center Weapons Division endorsed the Applicant’s administrative separation package.  On 4 Jan 2010, the Chief of Naval Personnel endorsed the Applicant’s administrative separation package and forwarded it to the Assistant Secretary of the Navy, Manpower and Reserve Affairs (ASN M&RA).  On 8 Jan 2010, the ASN (M&RA) approved the Applicant’s administrative separation with a General (Under Honorable Conditions) characterization of service.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable based on an improper NCIS investigation.  The NDRB is not an investigative body, and allegations of NCIS investigative and command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the NDRB conducted a detailed examination of the records to determine whether the Applicant’s discharge met the pertinent standards for equity and propriety.  After detailed examination and careful review of all the available evidence, the NDRB determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation.  With no significant or credible evidence submitted by the Applicant to question or otherwise rebut the presumption of regularity in this case, the NDRB found 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 NDRB found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain SECRETARIAL AUTHORITY.  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.

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