ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20160112
Characterization of Service Received:   
Narrative Reason for Discharge:   
Separation Code:  HKD
Reentry Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19850615 - 19861014  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:

Date of Current Enlistment:  19861015	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20070529	Highest Rank/Rate:  SN
Length of Service:  20 Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  38
Evaluation Marks:	Not Observed

Awards and Decorations (per DD 214):	NONE

Periods of UA:  19870209-19880418, 435 days; 19880503-20070528, 6965 days

NJP:  

- 19861212:	Article 112a (Wrongful use, possession, etc., of controlled substances)
	Awarded:     Suspended:  

SCM:  

SPCM:  

CIVIL ARREST:  

- 20070526:	Charges:  Money laundering and financial solicitation, obstruction administration of the law from Fort Lee Police Department, New Jersey 

CC:  

Retention Warning Counseling:  

- 19861219:	For the following deficiencies in your performance and/or conduct:  Wrongful use of a controlled substance.

Administrative Corrections to the Applicant’s DD 214

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

	  “19880503-20070528, 6965 days; 19870209-19880418, 435 days”

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 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 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 86, 112a.  

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

Applicant’s Issues

1.	The Applicant seeks service related benefits.
2.	The Applicant contends that his current discharge characterization is inequitable as he had a General (Under Honorable Conditions) discharge typed up and did not get to sign it.
3.	The Applicant contends that his discharge was inequitable as he was commissioned in May 1986 off the coast of Libya.
4.	The Applicant contends his discharge was inequitable as he had a good work ethic and disciplinary record while serving in the Navy.
5.	The Applicant contends that youth and immaturity contributed to his bad decisions.
6.	The Applicant contends that his post-service conduct, consisting of owning a small trucking company for the last three years and paying taxes, warrants consideration for an upgrade.

Decision

Date:  20160421		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 Separation Code shall  HKD.
By a vote of  the Reentry Code shall  .

Discussion

The Naval Discharge Review Board (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 Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc., of controlled substances).  The Applicant also has two significant periods of absence without leave totaling 7,400 days.  The first period of absence without leave commenced 15 days after his period of restriction and extra police duties expired at the conclusion of his NJP.  He was absent for 435 days and ended this period by surrendering himself to authorities.  The second period of absence without leave commenced approximately 14 days after he surrendered from his first period of absence without leave.  This period of absence lasted 6,965 days and ended with his civil arrest for money laundering and financial solicitation, obstruction administration of the law from the Fort Lee Police Department, New Jersey.  The Applicant had a pre-service drug waiver for using marijuana prior to entering the Navy.  Based on the offenses committed by the Applicant, he was administratively processed for separation by the Navy.  When notified of administrative separation processing using the  procedure on 28 May 2007, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant was discharged in absentia.

:  (Nondecisional) The Applicant seeks service related 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.

2-3:  (Decisional) ()  .  The Applicant contends that his current discharge characterization is inequitable as he had a General (Under Honorable Conditions) discharge typed up and did not get to sign it.  Additionally, the Applicant contends that his discharge was inequitable as he was commissioned in May 1986 off the coast of Libya.  After an exhaustive review of the record, the NDRB found no evidence to support these assertions.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  The NDRB found these issues were without merit to mitigate or excuse the Applicant’s misconduct that resulted in his discharge.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his discharge was inequitable as he had a good work ethic and disciplinary record while serving in the Navy.  The Applicant’s record shows that of the 7,532 days between his enlistment and discharge, he was in an absent without leave status for 7,400 days.  Of the 132 days the Applicant was not in an absence without leave status, 45 days were spent in a restriction status as a result of his guilty finding for the wrongful use of a controlled substance at NJP.  The remaining 87 days of service include the Applicant’s initial entry training and processing time between his civil arrest in New Jersey and his discharge in absentia.  The only evaluation in his record, covering his actual physical presence with a Navy command, is marked as not observed due to insufficient observation time.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends that youth and immaturity contributed to his bad decisions.  While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct 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.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends that his post-service conduct, consisting of owning a small trucking company for the last three years and paying taxes, warrants consideration for an upgrade.  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.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The NDRB found the Applicant’s characterization of service received was appropriate considering the length of service and UCMJ violation.  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 remain UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall remain MISCONDUCT (AWOL) with a corresponding separation code of HKD, and the reentry code shall remain RE-4. 

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