ex-EM3, USN

Current Discharge and Applicant’s Request

Application Received: 20111011
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	KBK or Secretarial Authority as Board sees fit

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20011214 - 20020318  	Active:		20020319 - 20050710  

Period of Service Under Review:
Date of Current Enlistment:  20050711	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060228	Highest Rank/Rate:  EM2
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  90
Evaluation Marks:	Performance:  1.0 (1)	Behavior:  1.0 (2)	OTA:  1.36

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  
- 20060123:	Article  (Failure to obey order or regulation, 2 specifications) 
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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, Article 92.

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

Applicant’s Issues

1.	The Applicant contends his discharge was too harsh for the offense committed.
2.	The Applicant contends his discharge was based on an isolated incident in nearly four years of honorable service.
3.	The Applicant contends his discharge was improper, because the offense he committed did not meet the requirements for separation under Naval Military Personnel Manual (MILPERSMAN) Article 1910-142.
4. 	The Applicant contends his discharge was a direct result of abnormal and highly scrutinized conditions at Submarine Base New London and aboard the USS PHILADELPHIA.
5.	The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to Honorable.  

Decision

Date:  20121109		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’s record of service included  non-judicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications).  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.

:  (Decisional) ()  .  The Applicant contends being discharged was too harsh for the offense committed.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge for failure to obey an order or regulation was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable, because it was based on an isolated incident in nearly four years of honorable service.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  Violation of Article 92 is one such offense that can lead to separation regardless of grade, performance, time in service, or the circumstances surrounding the offense.  Violation of Article 92 often results in an unfavorable characterization of discharge or, at a maximum, can result in 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.  After considering the facts and circumstances unique to this case, the NDRB determined that relief was not warranted, because, even though the Applicant was not the senior technician on site, he was aware of the requirements to safely perform the task but exercised poor judgment.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his discharge was improper, because his offenses did not meet the requirements for separation under MILPERSMAN Article 1910-142, in that they were not violent misconduct which resulted in, or had potential to result in, death or serious bodily injury (e.g., homicide, arson, armed robbery, assault with a deadly weapon, etc.).  The offenses the Applicant refers to are those that require “mandatory processing” for separation.  Not all violations of Article 92 require mandatory separation processing.  Article 92 violations other than the mandatory categories are left to a commanding officer to decide if they are serious enough to warrant separation processing.  Although the offenses committed by the Applicant did not require mandatory processing, they were considered serious offenses per Appendix 12 of the Manual for Courts-Martial and so warranted separation processing.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends his discharge was a direct result of abnormal and highly scrutinized conditions at Submarine Base New London and aboard the USS PHILADELPHIA.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his discharge was a direct result of the command environment at the time.  His discharge was completely in line with what others have received for similar misconduct.  The Board determined that relief based on this issue was not warranted.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to Honorable.  The NDRB considers 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.  The Applicant provided a criminal background report, character reference, evidence of volunteering at a school, college transcript, and a marriage license.  Although the Applicant provided much of the documentation as detailed in the Post-Service Conduct paragraph in the Addendum, completion of those 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 to determine if post-service conduct establishes that the in-service misconduct was an aberration.  After considering the Applicant’s post-service conduct in conjunction with the facts and circumstances unique to this case, the Board determined that partial relief based on this issue was warranted.  Partial relief granted to General (Under Honorable Conditions).  Full relief to Honorable and Secretarial Authority was not granted as misconduct did occur, and there is no indication that the Applicant was either not responsible for his actions or should not be held accountable for his misconduct.

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   but 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