ex-ITSA, USN

Current Discharge and Applicant’s Request

Application Received: 20110915
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)	20090407 - 20090609  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20090610	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20101104	Highest Rank/Rate:  ITSA
Length of Service:   Year(s)     Month(s)   25 Day(s)
Education Level:  	AFQT:  60
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	Pistol    

Periods of UA/CONF:  

NJP:  	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:

	 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, NAVY PISTOL MARKSMAN RIBBON”
	  “”

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 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.	Applicant contends youth and immaturity dealing with personal stressors led to the misconduct for which he was separated.
2.	Applicant contends his discharge was inequitable based on his record and the punishments other Sailors received.  
3.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  

Decision

Date:  20121004		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 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 contain any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishments (NJPs), or trial by courts-martial.  The record did reflect the Applicant was charged with several violations of the UCMJ, to include Article 92 (Failure to obey an order or regulation), Article 107 (False official statement), and Article 112a (Wrongful use, possession, etc of a controlled substance), and was referred for trial by Special Court-Martial on 2 September 2002.  On 9 September 2002, after consulting with counsel, the Applicant submitted a request for administrative separation from the Navy in lieu of trial by court-martial (SILT).  In his request, the Applicant admitted guilt to violation of UCMJ Articles 92, 107, and 112a.  He acknowledged his understanding that as a result of his request being approved, he may receive a characterization of service Under Other Than Honorable Conditions, and he was aware of the potential post-service consequences of such a discharge.  In consideration for his request, the Applicant agreed to provide testimony at a deposition regarding three other legal cases against fellow Sailors.  On 13 September 2010, after reviewing the Applicant’s record of service, and the facts and circumstances surrounding the Applicant’s misconduct, the Convening Authority approved the request for separation in lieu of trial by court-martial.  Per the SILT agreement between the Convening Authority and the Applicant, when notified of administrative separation processing using the  procedure on 7 October 2010, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  On 14 October 2010, the Applicant’s Commanding Officer endorsed his administrative separation in lieu of trial by court-martial package, stating, “(The Applicant) has been at this command for less than a year and during that time he has not been able to conform to the Navy’s core values due to his continually illegal drug use, his failure to obey lawful orders, and his unauthorized absence.  (The Applicant) was scheduled to go to a Special Court-Martial but he requested to be separated in lieu of trial, which I support.”  The Applicant was separated from the Navy on 4 November 2010 with an Under Other Than Honorable Conditions discharge due to Separation in Lieu of Trial by Court-Martial.

Issues 1-2:  (Decisional) ()  .  The Applicant contends youth and immaturity dealing with personal stressors led to the misconduct for which he was separated, and his discharge was inequitable based on his record and the punishments other Sailors received.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain good order and discipline; violation of UCMJ Articles 92, 107, and 112a meet this standard.  The Applicant was fully aware there is a zero-tolerance policy for drug abuse, and he understood the consequences.  While he may feel his youth and immaturity may have been the underlying causes of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits.  The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.

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, 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 post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct 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.  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.  After careful consideration of the Applicant’s record of service, and without any additional post-service documentary evidence available for review, the Board determined the Applicant’s discharge was proper and equitable and the 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,  record entries, and the separation in lieu of trial 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 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), 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