ex-BM3, USN

Current Discharge and Applicant’s Request

Application Received: 20110420
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)	19911112 - 19920814 ELS	Active:	 19940830 - 19990822 HON
	USNR (DEP)	19940803 - 19940829  		USN 19990823 - 20040819 HON

Period of Service Under Review:
Date of Current Enlistment:  20040820	Age at Enlistment:  33
Period of Enlistment:   Years   Extension
Date of Discharge:  20071113	Highest Rank/Rate:  BM2
Length of Service:   Years     Months   24 Days
Education Level:  	AFQT:  58
Evaluation Marks:	Performance:  3.8 (4)	Behavior:  3.3 (4)	OTA:  3.29

Awards and Decorations (per DD 214):	NDSM GWOTSM GWOTEM GCM (3) AFSM (2) AFEM BATTLE “E” (4) 
	SSDR (2)

Periods of UA/CONF:  

NJP:  1

- NFIR:	Article 92 (Failure to obey order or regulation)
	Article 107 (False official statement)
	Awarded: RIR (to E-4) FOP RESTR EPD   Suspended:  

SCM:  NONE		SPCM:  NONE		CC:  NONE     Retention Warning Counseling:  NONE 

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error 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, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GOOD CONDUCT MEDAL (3), ARMED FORCES SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, BATTLE “E” RIBBON (4), SEA SERVICE DEPLOYMENT RIBBON (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), LETTER OF COMMENDATION (2)”
	
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 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 92 and 107.

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

Applicant’s Issues

1.	Applicant seeks an upgrade to reenlist in the U.S. Armed Forces.
2.	Applicant seeks a discharge upgrade to increase employment opportunities.
3.	Applicant contends is discharge was improper as it was based on false accusations and gender-biased Chief Petty Officer leadership.
4.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20120621		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.  Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service for the current enlistment reflected one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 107 (False official statement).  Based on the offenses committed by the Applicant, his command processed him for administrative separation.  Since the NDRB did not have the Applicant’s administrative separation package documentation available, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, or request an administrative separation board.  The separation code HKQ listed on the Applicant’s DD Form 214 indicates the Applicant waived his right to the administrative separation board hearing.

:  (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.  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 Board for Correction of Naval Records 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.

:  (Nondecisional) The Applicant seeks a discharge upgrade to increase employment 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.

:  (Decisional) ()  .  The Applicant contends is discharge was improper as it was based on false accusations and gender-biased Chief Petty Officer leadership.  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, and although the Applicant’s service records were incomplete, the NDRB conducted a detailed analysis of the available records to determine whether his discharge met the pertinent standards for propriety and equity.  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.  After thorough review, the Board could find no evidence to support the Applicant’s contention of command legal or administrative impropriety.  An Evaluation Report found within the service records (dated 16 March 2007-20 October 2007) indicates the Applicant received NJP between March 

and September 2007, was found guilty of violating UCMJ Articles 92 and 107 (each considered a serious offense) and awarded reduction in rank to E-4, forfeiture of pay, restriction, and extra punishment duties.  He was not recommended for promotion or retention and subsequently processed for administrative discharge.  The Applicant was administratively separated from the Navy on 13 November 2007 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

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; violations of Article 92 and 107 meet this standard.  Although the Applicant contends false accusations and leadership bias were the cause of his unjust separation, the available evidence of record clearly reflects personal misconduct that resulted in a guilty finding at NJP and processing for administrative separation.  In addition, the separation code HKQ listed on the Applicant’s DD Form 214 indicates the Applicant waived his right to defend himself or rebut the proposed administrative separation at an administrative separation board hearing.  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.  Per the Naval Military Personnel Manual, 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 the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  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, especially considering his grade and length of service.  With no evidence within the record or evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined that the Applicant’s discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation.  Relief denied.

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 a character letter of reference as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  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 Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, and with no evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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