ex-YN1, USN

Current Discharge and Applicant’s Request

Application Received: 20140611
Characterization of Service Received:   
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	
Summary of Service

Prior Service:
Inactive:	USNR (DEP)   19960813 - 19960922  	Active:	  19960923 - 20000922  
	              20000923 - 20030217  		  20030218 - 20030815  
	              20030816 - 20031105  		  20031106 - 20070103  
				  20070104 - 20091102  
				  20091103 - 20120922  

Period of Service Under Review:

Date of Current Enlistment:  20120923	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20130830	Highest Rank/Rate:  YNC
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  37
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  2.43

Awards and Decorations (per DD 214):	Rifle      (8)  (2)   (5)   

Periods of UA/CONF:  

NJP:  

SCM:  

- 20130516:	Article  (Failure to obey an order or regulation, 3 specifications)
	Specification 1:  On divers occasions, between on or about February 2010 and on or about December 2012, violate a lawful general order to wit:  Departm4ent of Defense Financial Management Regulation 7000.14 Volume 9, Chapter 3, paragraph 030607, dated March 2005, by wrongfully misusing his Department of Defense Travel Charge Card to pay for personal expenses unrelated to official government travel. 
	Specification 2:  On divers occasions, between on or about August 2012 and on or about December 2012, was derelict in the performance of those duties in that in his capacity as the Agency Program Coordinator for the Government Travel Charge Card program he willfully failed to properly administer the Government Travel Charge Card program as it was his duty to do by wrongfully allowing Yeoman Second Class K____ J______, U.S. Navy, to misuse his Government Travel Charge Card to pay for personal expensed unrelated to official government travel.  
	Specification 3:  Did on divers occasions, between on or about July 2011 and on or about December 2012, violate a lawful general order to wit:  OPNAVINST 5370. 2C dated 26 April 2007, by wrongfully engaging in a personal relationship with Yeoman First Class R______ E______, U.S. Navy, that was unduly familiar and did not respect differences in grade or rank.  
	Article  (False official statement);  Did on or about 4 December 2012, with intent to deceive make official statements to wit:  that he was not aware of anyone else in the command misusing the Government Travel Charge Card, that he had only adjusted cash advance limits for members of the commend who were on official travel, and that no one had adjusted cash advance limits for him when he was not on official travel, and the statement sere then known by the said Chief Yeoman B_____ to be so false.  
	Sentence:  

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 031106 UNTIL 120922”
	  “     ”
	
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 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)(b), 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 92, 107.  

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

Applicant’s Issues

1.	The Applicant requests another Administrative Separation Board for a fair review of his character and service record.  
2.    The Applicant contends that his discharge should be upgraded to Honorable because his Administrative Board members were biased and had unlawful command influence.
3.    The Applicant suggest that his post-service is worthy of consideration for an upgrade.

Decision

Date:  20141125		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 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 UCMJ:  Article 92 (Failure to obey order or regulation, 3 specifications), and Article 107 (False official statement, 1 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 an administrative board. 

:  (Nondecisional)  The Applicant request another Administrative Separation Board for a fair review of his character and service record.  The NDRB does not have the authority to retry any proceedings conducted during an Applicants active duty service.  However, the Applicant does have the ability to petition to the NDRB in writing requesting a document review as well as a Personal Hearing.  During the document review and the Personal Hearing, the Applicant’s record of service, documentation sent in by the Applicant for in-service and post-service conduct, as well as any statements made written or verbal are examined to see if relief is in order.  The NDRB’s power is limited to the propriety and equity of discharge and change can be granted if warranted.  
  
:  (Decisional) ()  .  The Applicant contends that his discharge should be upgraded to Honorable because his Administrative Board members were biased and had unlawful command influence.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Furthermore, on 15 Jul 13, the Applicant through his counsel submitted a letter of deficiency to the Commander, Naval Special Warfare Group ELEVEN stating his contention that the Administrative Board members were biased and had unlawful command influence.  The response from the Commander was not found in the record, but the NDRB assumed that no improprieties were found based upon the Applicant’s discharge and characterization of service.  

The Applicant gives an example of the Administrative Board’s bias by stating he was a stellar performer and they called him “our problem child”.  The NDRB does not give merit to comments made at the Administrative Board but did do an exhaustive review of the Applicant service record.  Despite the Applicant’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  The NDRB did note that the Applicant had continuous Honorable service from 20031106 to 20120922 and have requested a change to block 18 of the DD214 to document this accordingly.  However, the Applicant’s current period of enlistment started on 20120923; and during this period of service, the Applicant committed serious offenses that he pled guilty to at a summary court martial that led to a subsequent Administrative Board.  The Applicant could have easily received an Under Other Than Honorable characterization for the actions committed during his present enlistment, but it appears that the Administrative Board took into account the Applicants prior periods of Honorable service and recommended a General (Under Honorable Conditions) characterization of service.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant suggest that his post-service is worthy of consideration for an upgrade.  The NDRB considers 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.  The Applicant provided an employment performance appraisal for the period of 20140504 to 20140930.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone 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 establishes that the in-service misconduct was an aberration.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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 HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).  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