ex-SO3, USN

Current Discharge and Applicant’s Request

Application Received: 20141210     
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	ADMINISTRATIVE/ ETS                   	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20090318 - 200900525  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20090526	Age at Enlistment:  
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20140624	Highest Rank/Rate:  SO2
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  12	AFQT: 42      
Evaluation Marks:	Performance:  3.5 (8)	Behavior:  2.88 (8)	OTA:  3.21

Awards and Decorations (per DD 214):	Rifle  Pistol   ARMYCOM    ACM     EOD PARACHUTE NSO SOMPE-M

Periods of UA/CONF:  

NJP:  

- 20130128:	Article 
	Article 
	Awarded: -E4  Suspended:   

- 20140114:	Article   
	Article 134 (General article, Conduct)
	Awarded: NFIR   Suspended:  NFIR
                        (Extracted from Evaluation Report and Counseling Record dated 20140505)

SCM:    SPCM:  

CIVIL ARREST:  

- 20131223:	Charges:  Third Degree- Felony Criminal Battery on a law enforcement officer, First Degree – Misd Resisting officer without violence, Second Degree -Misd Disorder intox public place cause disturbance

CC:  1

-20131223	Offense: Third Degree- Felony Criminal Battery on a law enforcement officer, First Degree – Misd Resisting officer without violence, Second Degree -Misd Disorder intox public place cause disturbance 
	Sentence:  1. Acquitted Jury Trial 2. Acquitted Jury Trial, 3. No Action Taken

Retention Warning Counseling:  
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 128, 134. 

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

Applicant’s Issues

1.	The Applicant contends his discharge was based on an incident that he was found innocent of in civilian court.   

Decision

Date:  20150311		Location:  Washington D.C.	Representation:  

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 Applicant’s record of service included    for  of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey order or regulation), Article 111 (Drunken or reckless operation of a vehicle), Article 128 (Assault), and Article 134 (General article, Conduct); and one CIVIL ARREST for Third Degree-Felony Criminal Battery on a law enforcement officer, First Degree – Misdemeanor Resisting officer without violence, Second Degree - Misdemeanor Disorder intoxication public place cause disturbance.  The Applicant was acquitted on the first two charges and the third charge was dropped.  Based on the offenses 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 an administrative board or a General Court-Martial Convening Authority review.

:  (Decisional) ()  .  The Applicant contends his discharge was based on an incident that he was found innocent of in civilian court.   In accordance with the MILPERSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  The Applicant’s command properly discharged the applicant at the time of his discharge based on the facts known to the command at the time.  However, following his discharge, the Applicant was acquitted in Civilian Court for the same operative facts for which he was discharged from the US Navy.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the discharge action at the time of separation but did discern an inequity in the characterization of the Applicant’s service based on his acquittal.  By majority rule, the NDRB voted to upgrade the Applicant’s discharge; by majority rule, the narrative reason for the discharge, shall change to Secretarial Authority.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual or the Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  Since there is no other narrative reason for separation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.   Relief granted.

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.  In this case, the NDRB voted to change the Applicant’s RE-Code to RE-1. 
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 the discharge was proper and equitable at the time of discharge.  However, based on the applicant’s acquittal in civilian court, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  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:  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