ex- AZ2, 

Current Discharge and Applicant’s Request

Application Received: 20201605
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 20060110 - 20091206  
				 20091207 - 20130210  

Period of Service Under Review:
Date of Enlistment:  20130211	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20150618	Highest Rank/Rate:  AZ2
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  53

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.5 (2)   Behavior/Conduct: 4.0 (2)   OTA: 4.08 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  NMCAM NAVY "E"(3RD) GCM(3RD) NDSM GWOTSM EAWS 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE 

NJP:  

- 20150215:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation)	
	[Extracted from Commanding Officer’s letter dated 28 May 2015

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20160323
NDRB Documentary Review Docket Number:	ND16-00175
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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 15560D), Change 43, effective 31 May 2013 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 43, effective 31 May 2013 until Present, Article 1910-162, SEPARATION BY REASON OF FAMILY ADVOCACY PROGRAM (FAP) FAILURE.

C. Naval Military Personnel Manual, (NAVPERS 15560D), Change 43, effective 31 May 2013 until Present, Article 1910-214, ADVERSE MATTER FROM A PRIOR ENLISTMENT.

D.  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.

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

Applicant’s Issues

1.	The Applicant contends that he was separated for adverse matter from a prior enlistment.  
2.	The Applicant contends that he was separated under MILPERSMAN 1910-162, a reason for which he was not notified.
3.    The Applicant contends that the notification for “intimate partner emotional abuse” failed to provide notice of a serious offense.
4.  	The Applicant contends that the board separated the Applicant for an allegation that does not amount to a serious offense.
5.  	The Applicant contends that the Incident Determination Committee (IDC) failed to follow governing regulations when reviewing the Applicant’s case in January 2015
6.   	The Applicant contends that the notification, script, and findings are inconsistent and irregular.

Discussion

Date:  20170131		Location:  WASHINGTON D.C.	Representation:  

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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 86 (Absence without leave, etc.)
	Article 92 (Failure to obey order, regulation)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.    When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  

:  The Applicant contends that he was separated for adverse matter from a prior enlistment.  On 25 March 2015, the Applicant was notified for separation on three basis.  The first basis was for Commission of a Serious Offense due to Family Advocacy Program (FAP) Failure (Child Physical Abuse and Neglect) dated 05 March 2009 which was during the Applicant’s first enlistment. Naval Military Personnel Manual Article 1910-214, Adverse Matter from a Prior Enlistment, allows the information to be used as a basis for separation if the adverse matter was not known at the time of reenlistment.  However, records from a prior enlistment may be used when the material has a direct value in determining whether the separation was appropriate.  Adverse matter from a prior enlistment may not be used for the purpose of characterization.  The NDRB concurs that one of the three basis for separation occurred six years prior, and the Applicant had reenlisted two times following the misconduct.  However, two of the basis for separation did occur in the Applicant’s third and final enlistment.  Of note, the command should have notified the Applicant for two additional basis for separation, Family Advocacy Program (FAP) Rehabilitation Failure and Commission of a Serious Offense for violation of Article 92 as documented at Nonjudicial Punishment on 15 May 2015. 

:  The Applicant contends that he was separated under MILPERSMAN 1910-162, a reason for which he was not notified.  The Administrative Separation Board and discharge paperwork indicate that the Applicant was not separated under Naval Military Personnel Manual (MILSPERMAN) Article 1910-162.  Article 1910-162, Separation by Reason of Family Advocacy Program (FAP) Failure, was appropriately listed as a reference on the administrative separation board findings since it provided relevant guidance that actual child abuse should be processed under misconduct due to Commission of a Serious Offense.  The Administrative Separation Board recommended to separate the Applicant based on a 3-0 vote that the evidence supported the basis of Commission of a Serious Offense due to the 05 March 2009 FAP case for substantiated Child Physical Abuse and Neglect, and a 2-1 vote that the evidence supported Commission of a Serious Offense due to the 15 January 2015 FAP case for substantiated Intimate Partner Emotional Abuse.  The Separation Board found the evidence did not support the basis of Commission of a Serious Offense due to the 11 December 2014 FAP case for substantiated Child Physical Abuse and Neglect.  The NDRB found that the Applicant was separated for a Commission of a Serious Offense and not as a FAP Failure under MILPERSMAN 1910-162; however, the FAP Failure was arguably a more appropriate separation basis.  

Issue 3, 4 and 6:  The Applicant contends that the notification for “intimate partner emotional abuse” failed to provide notice of a serious offense, the board separated the Applicant for an allegation that does not amount to a serious offense, and the Incident Determination Committee (IDC) failed to follow governing regulations when reviewing the Applicant’s case in January 2015.  The Applicant provided information that the FAP determination in the case was appealed but did not provide results of the appeal.  The NDRB contacted the Commander Naval Installations Command (CNIC) Family Advocacy Program (FAP) for the final determinations in all three FAP cases involving the Applicant.  Per CNIC FAP the Applicant did not appeal the first case.  The Applicant did appeal the findings for the 11 December 2014 FAP Failure (Child Physical Abuse and Neglect), and the findings were upheld by the CNIC FAP Headquarters Review Team (HRT).  The HRT overturned the 15 January 2015 IDC decision for FAP Failure (Intimate Partner Emotional Abuse) based on the Applicant’s appeal.  Both of these appeals were decided after the Applicant’s separation from the Navy and thus the information was not considered during the separation.  The NDRB found that separation based on the 15 January 2015 FAP IDC findings for Intimate Partner Emotional Abuse was no longer a valid basis for separation and that emotional abuse does not fit the UCMJ definition for assault that would evoke paragraph 1.d. of MILPERSMAN 1910-162 which directs administrative separation processing under Commission of a Serious Offense for actual spousal or child abuse. 

Issue 5:  The Applicant contends that the notification, script, and findings are inconsistent and irregular.  The NDRB requested and received the final separation paperwork from Helicopter Maritime Strike Squadron Seven Two and the final case determinations from CNIC FAP.  The NDRB noted that there was an administrative error in the separation notification whereby the dates of the second and third basis for separation were transposed.  The Administrative Separation Board Findings and Recommendations Sheet list the three FAP cases with the correct dates.  The Separation Board found that preponderance of evidence proved the IDC findings of Child Physical Abuse on 5 March 2009 which occurred in the Applicant’s first enlistment.  The Admin Board also found that evidence supported the IDC findings of Intimate Partner Emotional Abuse which was later overturned by CNIC FAP.  The NDRB considered that the Applicant should have been notified for separation for Under Other Than Honorable Conditions characterization of service for the violation of Article 92 resulting in a guilty finding at Nonjudicial Punishment on 15 May 2015;  however; the Applicant was not afforded the opportunity to contest those charges at an Administrative Separation Board which was his right.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB found that the most appropriate narrative reason for separation should have been FAP Rehabilitation Failure based on substantiated Child Abuse in March 2009 followed by a second substantiated case in December 2014.  Under MILPERSMAN 1910-162, the separation would have been processed under Best Interest of the Service and the least favorable characterization of service would have been Under Honorable Conditions (General).  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  An Under Honorable Conditions (General) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The NDRB found that Secretarial Authority is the most appropriate narrative reason for separation and the characterization of Under Honorable Conditions (General) was appropriate considering the NJP that occurred on 15 February 2015 for Article 86 and Article 92.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found that the discharge was improper based on the results of two Family Advocacy Program appeals that were not known at the time of discharge.  The awarded characterization of service shall  UNDER HONORABLE CONDITIONS (GENERAL);  however, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of Jff, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.