ex-IC1, USN

Current Discharge and Applicant’s Request

Application Received: 20120118
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	GHF (Other)/Unknown

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19991023 - 19991128  	Active:		19991129 - 20051019  

Period of Service Under Review:
Date of Current Enlistment:  20051020	Age at Enlistment:  
Period of Enlistment:   Years  22 MONTHS Extension
Date of Discharge:  20110218	Highest Rank/Rate:  ICC
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  54
Evaluation Marks:	Performance:  3.6 (8)	Behavior:  3.1 (8)	OTA:  3.46
Fitness Report:  

Awards and Decorations (per DD 214):	 (2)   (4)  (5)  (3)     (5) 

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: 

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 991129 UNTIL 051019”
	  “”

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, Articles 92, 93, 107, 121, 128, and134.

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

Applicant’s Issues

1.	The Applicant wants adverse evaluations removed from her record, and she wants her advancement to be reinstated.
2.	The Applicant contends her discharge was inequitable, because an investigation was improperly conducted and the discharge was based on allegations that were dropped without prejudice prior to the convening of the administrative board, which she contends was biased and had undue command influence.
3.	The Applicant contends her discharge was based on an isolated incident in 10 years of honorable service.
4.	The Applicant wants her separation code changed from GKQ to GHF.

Decision

Date:  20130103		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 did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violations of the of the Uniform Code of Military Justice (UCMJ).  The Applicant was charged with violation of UCMJ Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation, 2 specifications), Article 93 (Cruelty, maltreatment of subordinates, 10 specifications), Article 107 (False official statement, 3 specifications), Article 121 (Larceny), Article 128 (Assault), Article 134 (General Article - Disorderly conduct), Article 134 (General Article - Indecent language, 4 specifications), and Article 134 (General Article - Communicating a threat).  These charges were referred to a Special Court-Martial on 19 July 2010 but were withdrawn and dismissed without prejudice on 22 October 2010.  However, based upon a preponderance of the evidence that she committed the offenses, her command notified her of administrative separation processing for Misconduct (Commission of a Serious Offense).  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  By a vote of 3 to 0, the administrative board determined the Applicant did commit misconduct and recommended separation.  By a vote of 2 to 1, the administrative board recommended an Under Other Than Honorable Conditions characterization of service.  The Applicant’s command concurred, as did the Separation Authority, who ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense). 

:  (Non-decisional) 	The Applicant wants adverse evaluations removed from her record, and she wants her advancement to be reinstated.  This issue does not serve to provide a foundation upon which the NDRB can grant relief.  The Board has no jurisdiction over administrative matters such as evaluations and promotions.  Concerns regarding these matters can be addressed to the Board for Correction of Naval Records.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends her discharge was inequitable, because an investigation was improperly conducted and the discharge was based on allegations that were dropped without prejudice prior to the convening of the administrative board, which she contends was biased and had undue command influence.  The Applicant’s command notified her that she was to go to NJP for violating UCMJ Articles 92 and 134 on 11 June 2010.  She refused NJP, which was her right.  On 17 June 2010, her command notified her of separation processing for commission of a serious offense.  In accordance with Naval Military Personnel Manual (MILPERSMAN), (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, 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.  After further investigation, on 19 July 2010, her command referred charges of violating UCMJ Articles 92, 93, 107, 121, 128, and 134 to a Special Court-Martial.  Subsequently, her command withdrew the charges and dismissed them without prejudice on 22 October 2010.  The classification “without prejudice” means that the charges could have been reinstated, not that they were false or unfounded.  The Applicant appeared before an administrative separation board, which determined that the Applicant did commit misconduct, that separation was warranted, and further recommended a characterization of service Under Other Than Honorable Conditions.  Her command concurred, and the Separation Authority ordered her to be administratively discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense).  After a complete review of the records and substantial documentation submitted by the Applicant, the NDRB discerned no impropriety or inequity in the discharge proceedings.  The NDRB determined the Applicant’s command had a preponderance of the evidence to determine that she committed a serious offense and therefore, separation proceedings were appropriate.  The NDRB further determined the proceedings of the administrative separation board were proper and fair.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  Relief denied.

Issue 3:  (Decisional) ()  .  The Applicant contends her discharge was inequitable, because it was based on an isolated incident in 10 years of honorable service.  The Applicant received an Honorable discharge for her first enlistment from November 1999 to October 2005.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During her second enlistment, her command determined she violated numerous serious UCMJ articles as defined in Appendix 12 of the Manual for Courts-Martial, United States.  These violations were not isolated but occurred over a period of time.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline.  Violation of Articles 92, 93, 107, 121, 128, and 134 are such offenses that can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  Her command did not pursue a punitive discharge, but opted instead for the more lenient administrative discharge.  The Board determined that relief based on this issue was not warranted.  Relief denied.

Issue 4:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant wants her separation code changed from GKQ to GHF.  Per MILPERSMAN Article 1910-142, the separation code for an involuntary discharge that was an approved recommendation of a board for Misconduct (Serious Offense) is GKQ.  The Applicant was involuntarily discharged as the result of a board recommendation for commission of a serious offense.  The NDRB determined that GKQ is the correct separation code.  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