ex-OS3, USN

Current Discharge and Applicant’s Request

Application Received: 20160321
Characterization of Service Received:   
Narrative Reason for Discharge:    
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	SECRETARIAL PLENARY AUTHORITY

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19951120 - 19960902  	Active:	 19960903 – 20000830 HON

Period of Service Under Review:

Date of Current Enlistment:  20000831	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20010312	Highest Rank/Rate:  OS2
Length of Service:   Year(s)     Month(s)   11 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	 (2)               

Period of CONF:  

NJP:  

- 20010305:	Article  20001215-20010205, 52 days
	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:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 960903 UNTIL 000830”
	  “MISCONDUCT” 
	
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 31, effective 25 January 2001 until 
21 August 2002, 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 violations of the UCMJ, Articles 86, and 87.  

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper because he was not afforded due process during the discharge process.
2.	The Applicant contends his discharge is inequitable because of mitigating family issues that conflicted with his Navy duties.
3.	The Applicant contends that his post-service conduct warrants consideration for an upgrade of his discharge to Honorable.

Decision

Date:  20160421		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason 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   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 52 days), and Article 87 (Missing movement).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

:  (Decisional) ()  .  The Applicant contends his discharge is improper because he was not afforded due process during the discharge process.  The Applicant’s official Navy record did not contain his administrative separation package for review by the NDRB.  However, the Applicant’s record does show that he was found guilty at NJP for absence without leave for 52 days and missing his ship’s movement to sea.  Based on his offenses, the Applicant was processed for administrative separation.  The Applicant’s DD Form 214 shows that he did sign his discharge thus acknowledging his discharge as Under Other Than Honorable Conditions for reason of Misconduct.  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 the contention that his discharge is improper.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because of mitigating family issues that conflicted with his Navy duties.  The Applicant provided evidence that his wife was pregnant at the time of his misconduct and having difficulties with her pregnancy that affected her health, and the health of their unborn child.  The Applicant states that he was unable to reconcile the conflict between taking care of his wife and child, and his duties to the Navy to deploy with his ship to sea.  The Applicant reenlisted for his second enlistment in the Navy in August 2000.  The Applicant married his pregnant wife in September 2000.  The Applicant relocated his wife from New York to his duty station in Jacksonville, Florida.  The Applicant submitted evidence showing his wife was complaining of problems with her pregnancy in October 2000, and that she was requesting his presence at home to take care of her.  His wife stated that she was on bed rest, could not drive, and was told she could not take a bath without help.  However, the Red Cross could not verify a medical necessity existed for the Applicant to be released from his military duties.  In December 2000, the Applicant states that he drove his wife to New York to stay with her parents so that they could take care of her, and that the Applicant remained in New York with his wife in violation of Article 86 and Article 87 until he surrendered to military authorities in February 2001.  The NDRB recognizes that the Applicant’s personal circumstances were difficult, and that his wife’s health and the health of his unborn child, were likely considerations that may have contributed to his misconduct by absenting himself from his military duties.  Also, the deployment of his ship during his absence may have aggravated the Applicant’s misconduct with his command.  Therefore, the NDRB determined the Applicant’s misconduct is somewhat mitigated by the situation of his wife’s medical issues during the later stage of her pregnancy and warrants partial relief in an upgrade of his discharge to General (Under Honorable Conditions).  However, the Applicant’s narrative reason for discharge, and his reentry (RE) code of RE-4 will remain as issued.  Partial relief is granted. 

:  (Decisional) ()  .  The Applicant contends that his post-service conduct warrants consideration for an upgrade of his discharge to Honorable.  The Applicant states that he is employed as an Emergency Medical Technician (EMT), he was awarded as EMT of the Year for 2015, he is an active member of his church and volunteers as a youth mentor for young boys, and that he has not been in any legal trouble since his discharge.  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 provided a character letter from his employer.  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.  As the Board has already granted partial relief for the Applicant’s issue 2, no further relief is warranted.  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  at the time of discharge.  However, based on the Applicant’s issue, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS); however, the narrative reason for separation shall remain MISCONDUCT, and the RE code will 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