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

Docket No. ND15-00405

ex-CTM3, USN

Current Discharge and Applicant’s Request

Application Received: 20141210
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

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

Prior Service:
Inactive:	USNR (DEP)	19960620 - 19970608  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  19970609	Age at Enlistment:  18
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20010518	Highest Rank/Rate:  CTM3
Length of Service:  03 Year(s)   11  Month(s)   10 Day(s)
Education Level:  12	AFQT:  40
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  2.5 (2)	OTA:  2.93

Awards and Decorations (per DD 214):	GCM

Periods of UA/CONF:  NONE

NJP:  NONE	SCM:  NONE	SPCM:  NONE

CC:  6

- 19990722:	Offense:  Drunk in public and underage possession of alcohol
	Sentence:  $535 fine ($500 suspended upon completion of 50 hours community service) and court costs 

- 20000301:	Offense:  Driving under the influence
	Sentence:  License suspended for 12 months, 30 days in jail (suspended), $250 fine, mandatory participation in Alcohol Safety Action Program (ASAP), and court costs

- 20000712:	Offense:  Driving on a suspended license
	Sentence:  License suspended for 12 months, $200 fine, and court costs

- 20000725:	Offense:  Failure to appear in court
	Sentence:  10 days in jail, $100 fine, and court costs

- 20010314:	Offense:  Driving with a revoked license
	Sentence:  Six months in jail (five months suspended), one year probation, $300 fine, and court costs

- 20010416:	Offense:  Violation of good behavior 
	Sentence:  30 days in jail and court costs

Retention Warning Counseling:  1

- 20000803:	For your civilian convictions on 19990722, 20000301, and 20000712.

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 31, effective 25 January 2001 until 
21 August 2002, 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, Articles 92 and 111.  

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

Applicant’s Issues

1.	The Applicant seeks to improve his employment opportunities.
2.	The Applicant contends his discharge is inequitable since he was never offered grievance counseling after his sister passed away.
3.	The Applicant contends his discharge is inequitable since his command was too lenient on him by not punishing him as they did other sailors for similar offenses.
4 .	The Applicant contends his discharge is inequitable since his command knew he had issues going on but they let me continue to get in civilian trouble and offered no assistance other than a NAVPERS 1070/613 until his fourth time of getting into trouble.
5.	The Applicant contends his discharge is inequitable since a conviction was used as a pattern of misconduct even though it occurred prior to him earning a Good Conduct Medal.
6.	The Applicant contends his post-service conduct warrants an upgrade.

Decision

Date:  20150325	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 one NAVPERS 1070/613 (Page 13) warning and six civilian convictions.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was notified of separation proceedings for Commission of a Serious Offense, Civilian Conviction, and Pattern of Misconduct.

Issue 1:  (Nondecisional)  The Applicant seeks to improve his employment 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.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is inequitable since he was never offered grievance counseling after his sister passed away.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, or Family Advocacy Programs.  While the Applicant may feel that his family difficulties and lack of counseling were contributing factors to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  Relief denied.

Issues 3-4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is inequitable since his command was too lenient on him by not punishing him as they did other sailors for similar offenses.  The Applicant further contends his discharge is inequitable since his command knew he had issues going on but they let me continue to get in civilian trouble and offered no assistance other than a NAVPERS 1070/613 until his fourth time of getting into trouble.  The NDRB found the Applicant’s failure to take any personal responsibility for his own actions incredulous.  The NDRB found no impropriety or inequity in the command’s decision not to adjudicate the Applicant’s misconduct which would have been either pending or already tried in civilian courts.  The NDRB determined that these contentions do not provide a legitimate basis for an upgrade.  Relief denied.  

Issue5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is inequitable since a conviction was used as a pattern of misconduct even though it occurred prior to him earning a Good Conduct Medal.  The Applicant was notified of separation proceedings for Commission of a Serious Offense, Civilian Conviction, and Pattern of Misconduct.  Subsequently, the Applicant was separated with the primary reason of a Commission of a Serious Offense.  Although the NDRB concurs that the Applicant should not have received a Good Conduct Medal since he was convicted of a DUI, drunk in public, and underage possession of alcohol during the period of elegibility, the NDRB does not have the ability to revoke his award.  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 to have his Good Conduct Medal revoked.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.   The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and six civilian convictions which were willful failures to meet the requirements of his contract honorably.  The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate.  Relief denied.

Issue6:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants 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 documented history of his post-service conduct.  However, post-service conduct alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  The Board determined that the documentation submitted by the Applicant does not warrant relief.  Relief denied.

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 proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  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:  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

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