ex-OSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20140827
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (MINOR INFRACTIONS)
Authority for Discharge:   MILPERSMAN 

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

Prior Service:
Inactive:	USNR (DEP)	20021029 - 20030805  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20030806	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070126	Highest Rank/Rate:  OSSN
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  40
Evaluation Marks:	Performance:  3.3 (4)	Behavior:  2.5 (4)	OTA:  2.83

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  

- 20041104:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 
	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:   (20 days) 
 
- 20051117:	Article  (Failure to obey order or regulation, dereliction of duty) 
	Awarded:    Suspended:  

SCM:    SPCM:     CC:  

Retention Warning Counseling:  

- 20041104:	For disrespect to a Petty Officer and failure to obey order or regulation  

NDRB Documentary Review Conducted (date):	20110804
NDRB Documentary Review Docket Number:	ND10-01564
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	  “OSSA”
	  “E-2”
 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, BATTLE”E”RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST, NAVY RIFLEMAN MARKSMANSHIP MEDAL” 

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 11, effective 26 April 2005 until 29 May 2008, Article 1910-138, SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS.

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.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade in order to qualify for G. I. Bill benefits.
2.	The Applicant seeks an upgrade to enhance employment opportunities.
3.	The Applicant contends that the retention warning counseling he received was related directly to one of his two nonjudicial punishments; therefore, he did not meet the criteria of at least three minor violations for separation under the criteria for minor disciplinary infractions.
4.	The Applicant contends that his post service conduct warrants consideration for an upgrade. 

Decision

Date:  20150409		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  NAVPERS 1070/613 (Page 13) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, one specification) and Article 92 (Failure to obey order or regulation, two specifications).  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 a General Court-Martial Convening Authority review. 

:  (Nondecisional) The Applicant seeks an upgrade in order to qualify for G. I. Bill 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.

:  (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends that the retention warning counseling he received was related directly to one of his two nonjudicial punishments; therefore, he did not meet the criteria of at least three minor violations for separation under the criteria for minor disciplinary infractions.  The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in his official service record.  The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process.  The separation code on the Applicant’s DD Form 214 indicates that a discharge hearing board was not warranted due to the characterization issued and length of service.

The Applicant submitted documentation to attempt to rebut the presumption of regularity in governmental affairs by the NDRB.  The NDRB extensively reviewed the Applicant’s issue and the testimony and documentation he provided both for this hearing and his documentary review.  The NDRB noted that the documentary evidence provided by the Applicant for this board’s review and his statements to the board did not chronologically match.  Specifically, the Applicant stated that he had been arrested and held in jail for a period of less than 30 days for failure to pay misdemeanor traffic fines and his statement to a civilian judge that he would be underway during his scheduled court date.  Documents provided by the Applicant in support of this statement during his documentary review show a July 2006 offense date, a September 2006 arrest date, and November 2006 court date; however, his written petition to the board states the Applicant had a January 2007 court date and had been incarcerated over the preceding Christmas holiday period.  In the Applicant’s oral testimony to the NDRB he stated that his command had charged him with being in an unauthorized leave period during his civil incarceration.  The exact dates of his incarceration were not listed in the documentation provided by the Applicant or in the Applicant’s oral testimony and there is no record of unauthorized absence charges in the Applicant’s service record or time lost listed on his DD Form 214.  The Applicant testified that he did not recall the exact reasons or dollar amounts for his civil misconduct and postulated that it was likely for speeding tickets and a driver’s license suspension(s).  The NDRB determined that regardless of the validity or invalidity of the Applicant’s contention concerning his two NJPs and Page 13 warning, the additional civil arrest(s) and incarceration that occurred sufficiently validated the required amount of misconduct to warrant his separation.  The NDRB considered that the Applicant’s documentation shows that one of the arrests resulted in an eventual dismissal of the charges; however, the preponderance of the evidence at the time of his separation processing would have clearly demonstrated an adequate number of misconduct incidents to warrant his separation.  Having charges dismissed has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.

Additionally, the NDRB considered that violations of Articles 91 and 92 of the UCMJ are normally considered serious offenses and that a servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  In such cases there is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  The NDRB also considered the predominately significant negative aspects of the Applicant’s performance as documented in three of his four performance evaluations.  After a comprehensive review of the Applicant’s service record and both the written and oral testimony he provided, the NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends that his post service conduct 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 and his oral testimony, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS).  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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (MINOR INFRACTIONS).

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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