Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Roberts, James A CIV SECNAVCORB, NDRB
Company: NCPB

Docket No. ND15-00209

ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20141016
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) MISCELLANEOUS/GENERAL REASONS
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-126 [CONVENIENCE OF THE GOVERNMENT—REVIEW ACTION]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19971122 - 19980812  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  19980813	Age at Enlistment:  18
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20020812	Highest Rank/Rate:  OS2
Length of Service:  04 Year(s)   00  Month(s)   00 Day(s)
Education Level:  12	AFQT:  40
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  1.0 (1)	OTA:  2.71

Awards and Decorations (per DD 214):	SSDR AFEM NDSM

Periods of UA/CONF:  NONE

NJP:  2

- 20000128:	Article 107 (False official statements)
	Article 121 (Larceny and wrongful appropriation)
	Awarded: RESTR EPD FOP  Suspended:  NONE

- 20020308:	Article 112a (Wrongful use, possession, etc. of controlled substances; marijuana, 84 ng/ml)
	Awarded: RESTR  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20000315:	Details NFIR [Extracted from Commanding Officer, USS STOUT (DDG 55), RECOMMENDATION FOR ADMINISTRATIVE SEPARATION letter dated 24 May 2002]

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 34 effective 15 October 2001 until 
21 August 2002, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 contends his administrative separation board recommended retention to his end of active service.
3.	The Applicant contends his post-service conduct is worthy of an upgrade.
4.	(Board Issue) The Applicant’s discharge was improper as COMNAVPERSCOM directed his separation at his end of active service, not due to his innocence of the charges, but due to numerous administrative errors making his misconduct separation impractical in the time remaining on his enlistment.

Decision

Date:  20150225	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to COMPLETION OF REQUIRED ACTIVE SERVICE.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statements, one specification), Article 112a (Wrongful use, possession, etc. of controlled substances; one specification), and Article 121 (Larceny and wrongful appropriation, one specification).  The Applicant did not have a pre-service drug waiver prior to entering the Navy.  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant’s administrative board found that the preponderance of the evidence did not support the allegations of misconduct drug abuse and recommended retention.  The Applicant’s commanding officer disagreed with the administrative separation board and recommended the Applicant be separated with an UNDER OTHER THAN HONORABLE CONDITIONS discharge for drug abuse.  In official message traffic dated 26 July 2002, Commander, Navy Personnel Command, as the separating authority, stated concurrence “with the command’s assessment that SNM committed misconduct and warrants reprocessing for the best interest of the service (BIOTS).  However, due to SNM’s pending EAOS (12AUG02) reprocessing is not practical…separate member at EAOS and assign REEN Code RE-4.”

Issue 1:  (Nondecisional) The Applicant seeks an upgrade in order to qualify for G. I. Bill benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  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.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his administrative separation board recommended retention to his end of active service.  The administrative separation board’s recommendation is just that, a recommendation.  The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence.  There is no provisional guarantee that a sailor will receive anything that a local administrative board recommends.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct is worthy of 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.  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 Under Other Than Honorable Conditions.  Relief denied.

Issue4:  (Decisional) (Board Issue) (Propriety)  RELIEF WARRANTED.  The Applicant’s discharge was improper as COMNAVPERSCOM directed his separation at his end of active service, not due to his innocence of the charges, but due to numerous administrative errors making his misconduct separation impractical in the time remaining on his enlistment.  In accordance with MILPERSMAN Article 1910-104, a member separated upon expiration of enlistment or fulfillment of service obligation is eligible for a characterization of HONORABLE, unless a GENERAL (UNDER HONORABLE CONDITIONS) is warranted on the basis of the Enlisted Performance Evaluation System.  If during the current enlistment, the servicemember’s evaluation overall trait average is 2.49 or below, then it is appropriate to receive a GENERAL (UNDER HONORABLE CONDITIONS) discharge.  The Applicant’s service record is incomplete; however, the only evaluation in his record reflects an overall trait average of 2.71.  This evaluation included his NJP conviction of violation of the UCMJ Article 112a.  The Applicant’s subsequent administrative separation board cited his superior markings on all evaluations preceding this evaluation as evidence of his good performance and character.  This assertion was not contested by the government during the administrative board proceedings and therefore the NDRB accepts that the available documentary evidence supports the assumption that his overall trait average at discharge was above the mark for an HONORABLE discharge.  Additionally, the evidence of record clearly demonstrates that the Applicant was not discharged before he completed his required active service.  Official message traffic directed his separation at the conclusion of his enlistment contract with the only stipulation being a change to his RE-Code indicating his ineligibly to continue his service in a future capacity.  Therefore, an HONORABLE characterization and a change to narrative reason to COMPLETION OF REQUIRED ACTIVE SERVICE are appropriate.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was improper.  Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to COMPLETION OF REQUIRED ACTIVE SERVICE.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water