ex-ATAR, USN

Current Discharge and Applicant’s Request

Application Received: 20110712
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)	19991120 - 20000417  	Active:	
	USNR (DEP)	20010116 - 20010130  

Period of Service Under Review:
Date of Current Enlistment:  20010131	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20030221	Highest Rank/Rate:  ATAN
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  80
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	

Periods of UA/CONF:  

NJP:  	SPCM:  	CC:  

SCM:  

- 20030122:	Article  (Absence without leave 0600-0725, 20021125)
	Article  (Failure to obey order or regulation), 4 specifications
	Specification 1: Wrongfully providing alcoholic beverages to minors
	Specification 2: Wrongfully having unauthorized guests in barracks room
	Specification 3: Wrongfully smoking in barracks room
	Specification 4: Wrongfully placing a person without proper identification in the trunk of his car to gain access to the base
	Sentence:   (20030122-20030213, 23 days) 

Retention Warning Counseling:  

- 20020712:	For adultery.

Administrative Corrections to the Applicant’s DD 214

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

	  “”
	  “03JAN22 TO 03FEB13”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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.

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

Applicant’s Issues

1.	The Applicant contends his record of service outweighs his misconduct.
2.	The Applicant contends significant personal stressors in his life led to his misconduct.
3.	The Applicant contends he was not fully explained his rights under the Uniform Code of Military Justice (UCMJ) and never received the option to attend Captain’s Mast (i.e., Nonjudicial Punishment).
4.	The Applicant contends that the Summary Court-Martial did not recommend discharge on the basis of his offenses.
5.	The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date:  20120906		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 Board did complete 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 included  NAVPERS 1070/613 (Page 13) warning and   for  of the UCMJ: Article 86 (Unauthorized Absence, 0600 - 0725, 25 November 2005) and Article 92 (Failure to obey order or regulation, 4 specifications: Specification 1 - wrongfully providing alcoholic beverages to minors; Specification 2 - wrongfully having unauthorized guests in barracks room; Specification 3 - wrongfully smoking in barracks room; Specification 4 - wrongfully placing a person without proper identification in the trunk of his car to gain access to the base).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

The Applicant contends he was told that he had to wait seven years until he could appeal his discharge.  There is no time limit for when a former servicemember can apply for the review of a discharge.  Within 15 years after a discharge, a former servicemember can receive a documentary review and a personal appearance hearing before the NDRB.  However, a former servicemember is eligible to apply for an upgrade review immediately after discharge.

:  (Decisional) ()  .  The Applicant contends his record of service outweighs his misconduct.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the  to maintain proper order and discipline.  Violation of Article 92 is one such offense that warrants processing for administrative separation regardless of grade, performance, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

The Applicant contends he was awarded a Good Conduct Medal.  This is incorrect.  To be awarded a Good Conduct Medal, a servicemember must serve for three years on active duty without misconduct.  During the Applicant’s two years of service, he received a Page 13 retention warning for adultery and was found guilty of violation of UCMJ Articles 86 and 92 at a Summary Court-Martial.  The service-record entry on the NAVPERS 1070/604 form refers to the resetting of the 3-year time counter after his last misconduct, which was the Summary Court-Martial conviction on 28 January 2003.

:  (Decisional) ()  .  The Applicant contends significant personal stressors in his life led to his misconduct.  The NDRB recognizes that serving in the U.S. Navy is challenging.  However, most members of the Navy serve honorably and, therefore, earn their Honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant’s service was equitably characterized.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was not fully explained his rights under the UCMJ and never received the option to attend Captain’s Mast (i.e., Nonjudicial Punishment).  The NDRB conducted an extensive review of the Applicant’s service records and found that the Applicant was fully advised of his rights for each instance of misconduct and for the administrative separation processing.  He signed the Page 13 retention warning for adultery on 12 July 2002 and was afforded all of his rights before, during, and after his Summary Court-Martial for violation of UCMJ Articles 86 and 92.  He did not have the right to request Captain’s Mast (i.e., NJP).  His command properly referred charges against him at a Summary Court-Martial, not a Special Court-Martial as the Applicant alluded to in his statement.  The Applicant could have faced charges at a Special Court-Martial, but his command opted for the more lenient administrative discharge.  The Applicant was notified of administrative separation processing on 22 January 2003, and he waived his rights, in writing, to consult with a qualified counsel, submit a written statement, and request an administrative board.  At the administrative board, he could have presented his case for retention in the Navy.  However, he waived this right.  After a complete review of the Applicant’s service records, the NDRB determined that his separation for Misconduct (Commission of a Serious Offense) Under Other Than Honorable Conditions was both proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that the Summary Court-Martial did not recommend discharge on the basis of his offenses.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  After his conviction for violating UCMJ Articles 86 and 92 at a Summary Court-Martial, the Applicant served his time in confinement and was returned fit for full duty to his command.  His command determined that his conduct did not warrant further service in the Navy and initiated separation processing.  The basis for separation was Misconduct (Commission of a Serious Offense) per Naval Military Personnel Manual Article 1910-142 for his violation of UCMJ Article 92, which is considered a serious offense per Appendix 12 of the Manual for Courts-Martial.  In accordance with Article 1910-142 of the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  As part of the separation processing, the Applicant was provided the opportunity to present his case before an administrative board, but he waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.

:  (Decisional) ()  .  The Applicant provided a personal statement and three letters of character reference.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that 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 exist during the period of enlistment in question.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The NDRB determined the awarded characterization 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,  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. 

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