ex-PHAA, USN

Current Discharge and Applicant’s Request

Application Received: 20141107
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) 19941130 - 19950326  	Active:	

Period of Service Under Review:

Date of Current Enlistment: 19950327	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19991105	Highest Rank/Rate:  PH3
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  65
Evaluation Marks:	Performance:  3.7 (7)	Behavior:  2.5 (7)	OTA:  3.06

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

Periods of UA/CONF:  

NJP:  

- 19990907:	Article 90 (Assaulting or willfully disobeying superior commissioned officer) 
	Awarded:     Suspended:   [Extracted from Evaluation Report & Counseling Record dtd 19991105] 

SCM:    SPCM:    CC:  

Retention Warning Counseling:  

- 19990907:	NO DETAILS FOUND IN RECORD [Extracted from Commanding Officer Letter dated 19991103] 

NDRB Documentary Review Conducted (date):	20031215
NDRB Documentary Review Docket Number:	ND03-00436
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:

	  “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:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 
29 March 2000, 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 90.  

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

Applicant’s Issues

1.	The Applicant contends that the United States District court recently ruled that the order is, and always has been, illegal and has issued a permanent injunction against the Department of Defense prohibiting them from ordering personnel to this vaccine without their consent. 
2.    The Applicant opines that his characterization of service was proper and equitable at the time of discharge but contends that it is no longer just under current federal law and requests an upgrade to Honorable and a narrative reason change to secretarial authority. 
3.    The Applicant contends that his post-service conduct is worthy of consideration for an upgrade.  

Decision

Date:  20150713		Location:  Washington D.C.	Representation:  

Pending results of hearing

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code 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) warnings, and   for  of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying superior commissioned officer, 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 waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. 

:  (Decisional) ()  .  The Applicant contends that the United States District court recently ruled that the order is, and always has been, illegal and has issued a permanent injunction against the Department of Defense prohibiting them from ordering personnel to this vaccine without their consent.  The Applicant further opines that his characterization of service was proper and equitable at the time of discharge but contends that it is no longer just under current federal law and requests an upgrade to Honorable and a narrative reason change to secretarial authority.   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 there is a permanent injunction against the Department of Defense (DOD) prohibiting them from ordering personnel to receive the anthrax vaccine without their consent.  Furthermore, issues regarding the safety of the DOD’s Anthrax Vaccination program are beyond the purview of the NDRB to address, and the NDRB has no authority to question this determination by DOD.  DOD has determined that personnel whose duties are essential to mission critical capabilities are vaccinated against anthrax, both for their personal protection and for the success of the military mission.  The Board found that the Applicant willfully disobeyed a superior commissioned officer by not executing an order to take the anthrax vaccine.  This is a clear departure from the expected standards of members of the Naval Service and the Applicant was subsequently taken to NJP and found guilty of misconduct.  Therefore, the NDRB found that there was no impropriety or inequity in the discharge process of the Applicant and the characterization of service and narrative reason for discharge are appropriate.  After an exhaustive review of the record, a preponderance of the evidence reviewed supports the conclusion that the Applicant failed to obey a lawful order and that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied. 
:  (Decisional) ()  .  The Applicant contends that his post-service conduct 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 a personal statement, a transcript from from St. Martinus University, documentation of Honorable Air Force Reserve duty from 20040219 – 20040930, and several letters of recommendation.  Based upon this documentation submitted and the Applicant’s oral testimony from the personal hearing, the NDRB requested that the Applicant submit some additional information.  The NDRB sent out a letter dated July 15, 2015 requesting that the Applicant submit his marriage certificate, military shot records, college transcript or diploma, proof of spouse’s military rank and current duty station, and his DD214 or discharge certificate from his most recent reserve duty.  This letter gave guidance that his case was held in abeyance for thirty days pending his response.  The NDRB did not receive any of the requested documentation from the Applicant.  The Applicant could have provided additional documentation as requested from the NDRB as well as other documentation 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.  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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  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:  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