ex-MMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20150916
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	Reentry Code change to:  

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20090622 - 20100426  	Active:		20100427 - 20140109  

Period of Service Under Review:

Date of Current Enlistment:  20140110	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20140624	Highest Rank/Rate:  MM3
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  45
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  2.0 (2)	OTA:  3.57

Awards and Decorations (per DD 214):	Pistol   

Periods of UA/CONF:  

NJP:  

- 20140319:	Article 
	Article 
	Article 
	Awarded:    Suspended:  

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, GOOD CONDUCT MEDAL, NAVY PISTOL MARKSMANSHIP RIBBON, BATTLE “E” RIBBON, ENLISTED SURFACE WARFARE SPECIALIST PIN”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 100427 UNTIL 140109”

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 36, effective 18 August 2011 until Present, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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 91, 92, 134.

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

Applicant’s Issues

1.	The Applicant requests a change to her discharge characterization and reenlistment code in order to reenlist.
2.	The Applicant contends that she was inequitably punished both excessively and multiple times for the same set of offenses.
3.	The Applicant contends that the record shows she was entitled to wear the ribbons she was accused of falsely wearing.

Decision

Date:  20160111		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code 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   for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward WO, NCO, or PO; one specification), Article 92 (Failure to obey order or regulation, one specification), and Article 134 (General article, one specification).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation. 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 a General Court-Martial Convening Authority review.

:  (Decisional) ()  .  The Applicant requests a change to her discharge characterization and reenlistment code in order to reenlist.  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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.  However, after an exhaustive review of the Applicant’s service record and the facts and circumstances surrounding her discharge, the NDRB voted by simple majority to change her RE-Code to RE-1.  Relief granted.

:  (Decisional) ()  .  The Applicant contends that she was inequitably punished both excessively and multiple times for the same set of offenses.  The Applicant bases her contention on the premise that her punishment at NJP, subsequent reassignment of duties, and final administrative separation to be double jeopardy and excessive punishment for a single set of 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.  As such, the Applicant’s contention that she was punished twice for the same misconduct is erroneous.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service and her narrative reason for separation.  An exhaustive review of the record revealed the Applicant had served without incident before being transferred to the transient personnel unit (TPU) due to her pregnancy with evaluations that were at least above average prior to her assignment.  This included an early promote recommendation immediately prior to her transfer to TPU along with a laudatory word picture in her last evaluation.  Based upon the evidence in the record, the NDRB determined the documentation contained within the record shows that while the Applicant’s offense could warrant separation, the documentary evidence to include her accuser’s and a witnesses statement show that separation for the commission of a serious offense was inequitable.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual or the Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  Since there is no other narrative reason for separation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.  By unanimous vote, the NDRB voted to upgrade the Applicant’s discharge characterization to Honorable; by majority rule narrative reason for the discharge and reenlistment code shall change to Secretarial Authority and RE-1.  Relief granted.

:  (Decisional) ()  .  The Applicant contends that the record shows she was entitled to wear the ribbons she was accused of falsely wearing.  In reviewing the Applicant’s service record, the NDRB noted that her DD Form 214 failed to list her recorded awarding of the Battle “E” ribbon and Enlisted Surface Warfare Specialist pin.  The NDRB also noted that the Applicant’s service evaluations documented her participation in Operation UNIFIED PROTECTOR, the operation the Applicant could have received her claimed NATO medal from and provided corresponding documentation for.  However, the NDRB’s purpose and scope is strictly limited to determinations of propriety and equity of a discharge characterization and is not an investigative body that can thoroughly conduct the research to determine if she should properly have this award added to her official record.  The NDRB therefore suggests the Applicant petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review on this issue.  Additionally, from the charges in the record the NDRB is unable to determine exactly which ribbons the Applicant’s command accused her of falsely wearing; thereby making this an issue the NDRB cannot reconcile without going against the presumption of regularity in government affairs.  Finally, the NDRB considered that the violation of wearing improper ribbons was only one of three charges she was found guilty of at NJP and, therefore, the NDRB found this was not an issue that could serve as a basis for relief.  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 change to HONORABLE, the narrative reason for separation shall change to , and her RE-Code shall change to RE-1.

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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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