ex-OS1, USN

Current Discharge and Applicant’s Request

Application Received: 20110311
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)	19940915 - 19940925  	Active:		19940926 - 19980923  
					19980924 - 20030922  
					20030923 - 20090618  
Period of Service Under Review:
Date of Current Enlistment:  20090619	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20091211	Highest Rank/Rate:  OS1
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  40
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  1.0 (1)	OTA:  2.71
Awards and Decorations (per DD 214):	 (2)  (4)   GWA (5) NRR 

In Hands of Civil Authorities:  20090831-20090918 (19 days)		CONF:  

NJP:  
- 20090921:	Article  (Failure to obey lawful order, 2 specifications)
		Specification 1: Violate Military Protective Order by sending an e-mail to his spouse, 20090806
		Specification 2: Violate Military Protective Order by speaking with his spouse, 20090921
	Awarded:     Suspended:  

SCM:  	SPCM:  		Retention Warning Counseling:  

CC:  
- NFIR:	Offense:  Class “A” misdemeanor
	Sentence:  30 days CONF (Jacksonville, FL)
			[*extracted from Evaluation Report dated 20081116-20091115]

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

	  “94  SEP  26”
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL (2), GOOD CONDUCT MEDAL (4), GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GOLD WREATH AWARD (5), NAVY RECRUITING RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), BATTLE “E” RIBBON, MERITORIOUS UNIT COMMENDATION, LETTER OF COMMENDATION, PISTOL SHARPSHOOTER RIBBON, ENLISTED SURFACE WARFARE SPECIALIST, ENLISTED AVIATION WARFARE SPECIALIST”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 940926 UNTIL 090618”
	  “MILPERSMAN 1910-142”

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 29, effective 10 November 2009 until 17 August 2011, 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.

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 benefits.
2.	Applicant contends his discharge was improper due to command impropriety. 
3.	Applicant contends his discharge was inequitable, because it was based on an isolated incident in otherwise honorable service.
4.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade. 

Decision

Date:  20120531		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 three 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 did not include any NAVPERS 1070/613 (Page 13) retention warnings or trial by courts-martial.  However, the record did reflect  nonjudicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, violated a 6 August 2009 Military Protective Order, 2 specifications: on 7 August 2009, by sending an email to his spouse and on 21 August 2009, by speaking with his spouse at the Branch Medical Clinic, Naval Station Mayport, FL).  The record also indicated the Applicant was arrested and subsequently found guilty of a Class ‘A’ misdemeanor in civil court for a domestic violence incident with his spouse.  Upon completion of civil custody (31 August-18 September 2009), the Applicant was immediately returned to Navy control.  On 20 October 2009, the Commander, Navy Personnel Command directed that the Applicant be processed for administrative separation due to Misconduct - Civil Conviction (as evidenced by the August 2009 domestic battery conviction) and Misconduct - Serious Offense (as evidenced by violation of the Military Protective Order, dated 6 August 2009, which resulted in NJP, and as a result of the Applicant’s determination of being a Family Advocacy Program (FAP) failure due to a history of domestic violence for spousal abuse).  Based on the FAP program failure determination, processing for administrative separation is mandatory per Naval Military Personnel Manual Article 1910-162.  The NDRB did not have the Applicant’s administrative separation package documentation available to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  The separation code GKQ listed on the Applicant’s DD Form 214 indicates he requested and received an administrative board proceeding, and this is further confirmed by the Applicant’s statement on his DD Form 293.  The Applicant was separated from the Navy on 11 December 2009 with a General (Under Honorable Conditions) discharge due to Misconduct (Serious Offense).

:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.  Additionally, 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.

Issues 2-3:  (Decisional) ()  .  The Applicant contends his discharge was improper due to command impropriety and inequitable because it was based on an isolated incident in otherwise honorable service.  The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the Board conducted a detailed review of the 

Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity.  The Applicant’s record clearly indicates he was convicted of a class ‘A’ misdemeanor in civil court and sentenced to 30 days jail time for a domestic violence incident involving his spouse.  Upon completion of confinement and return to military control, he received Captain’s Mast (NJP) and was found guilty of two violations of Article 92, in which he failed to obey the Military Protective Order directed by his commanding officer.  Per the Manual for Courts-Martial, violations of UCMJ Article 92 are considered serious offenses and are punishable by a Bad Conduct Discharge and six months confinement if awarded at trial by court-martial.  The Applicant’s command did not refer him to trial by court-martial but opted instead to process him for administrative separation.  Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial, nonjudicial punishment, or in civil court.  Moreover, 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 UCMJ Article 92 meets this standard.  The record clearly reflects his repeated and willful misconduct and demonstrated he was unfit for further service, even after considering his rank and position of leadership as a First Class Petty Officer serving on his fourth enlistment.  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.

The characterization of service is a description of the service provided during the member’s enlistment.  When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable.  A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the 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, experience and length of service, and falls short of what is required for an upgrade in the characterization of service to Honorable.  After careful analysis and consideration of the facts and circumstances surrounding the Applicant’s discharge, the NDRB determined that his discharge was proper, equitable and in accordance with the applicable orders and directives in effect at the time of his discharge.  Relief denied.

Issue 4:  (Decisional) ()  .  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 as evidence of post-service accomplishments.  He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, 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.

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