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

Docket No. ND15-00575

ex-QMSA, USN

Current Discharge and Applicant’s Request

Application Received: 20150203
Characterization of Service Received:  (corrected) UNDER OTHER THAN 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)	19980327 - 19980422  ELS	Active:	NONE
	USNR (DEP)	19990802 - 19990825  COG

Period of Service Under Review:

Date of Current Enlistment:  19990826	Age at Enlistment:  21
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20020509	Highest Rank/Rate:  QMSN
Length of Service:  02 Year(s)   08  Month(s)   14 Day(s)
Education Level:  12	AFQT:  53
Evaluation Marks:	Performance:  2.0 (2)	Behavior:  2.0 (2)	OTA:  2.5

Awards and Decorations (per DD 214):	Pistol SS NDSM SSDR AFEM NAVY "E"(3), ESWS

Periods of UA/CONF:  NONE

NJP:  2

- 20010326:	Article 112a (Wrongful use, possession, etc., of controlled substances)
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

- 20020129:	Article 92 (Failure to obey order or regulation)
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE			

SPCM:  NONE		

CC:  NONE

Retention Warning Counseling:  1

- 20010326:	For deficiencies related to NJP on 20010326 for Article 112a (Wrongful use, possession, etc., of controlled substances).

Administrative Corrections to the Applicant’s DD 214

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

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, 9MM SHARPSHOOTER RIBBON, SEA SERVICE DEPLOYMENT RIBBOM, ARMED FORCES EXPEDITIONARY MEDAL, NAVY "E" RIBBON (3), ENLISTED SURFACE WARFARE SPECIALIST.”
Block 14, Military Education, should read: “QM “A” SCHOOL A061-0012, 8WKS, JAN00, PIER SENTRY ACADEMY, 32HRS, JAN01”
Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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 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, Article 92, Failure to obey order or regulation.

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

Applicant’s Issues

1.    The Applicant contends that he received certificates and awards that were not listed on his DD214.  
2.	The Applicant contends that his discharge was inequitable because he had injured himself aboard ship and did not receive proper care.
3.	The Applicant contends that his discharge was inequitable because it was based on an incident that occurred while he was dealing with the loss of his legal guardian, and he was not properly notified of her death and that youth and immaturity was a major contribution to the misconduct.

Decision

Date:  20150402	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN 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 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, two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 112a (Wrongful use, possession, etc., of controlled substances).  Based on the offenses 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.

Issue 1:  (Nondecisional)  The Applicant contends that he received certificates and awards that were not listed on his DD214.  The Applicant noted that a Certificate of Appreciation from Bachelor Housing, a Pier Sentry Academy certificate for 08-11 January 2001 training, and an Enlisted Surface Warfare Specialist certificate were missing from his DD214.  He provided copies of the Certificate of Training and the Enlisted Surface Warfare Specialist certificate, but not the Certificate of Appreciation from Bachelor Housing.  The DD214 is prepared as part of the separation out-processing and is completed after the discharge decision and characterization are completed.  The DD214 would not have impacted the discharge characterization.  The board has noted the administrative corrections to the DD214 for the two documents supplied and they will be provided to the Commander, Navy Personnel Command for correction.  However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed.  It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record.  If the applicant has the Certificate of Appreciation from Bachelor Housing, the Applicant should consider petitioning the Board for Correction of Naval Records (BCNR) for correction.  The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED. The Applicant contends that his discharge was inequitable because he had injured himself while aboard ship and did not receive proper care.  The Applicant did not specify the injury, when it occurred, nor provide additional documentation for consideration by the NDRB as mitigation for performance issues.  The record shows that that the Applicant marked broken bones and an emergency room visit on the medical questionnaire portion of his 28 January 2002 separation physical.  In the notes section, the Applicant amplified that he had broken digits when a vehicle had flipped seven and a half times.  The separation physical documents that the Applicant was qualified for service.  There were no items listed under section 78 (Significant or disqualifying defects).  Section 77(Summary of Defects and Diagnosis) has a hand written entry that states “normal exam”.  The Applicant included a letter from the VA dated 28 January 2006 with his application where the VA has determined that the Applicant is is eligible for health care benefits.  The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends that his discharge was inequitable because it was based on an incident that occurred while he was dealing with the loss of his legal guardian and he was not properly notified of her death, and that youth and immaturity was a major contribution to the misconduct.  It is not possible for the NDRB to examine the facts surrounding how the notification of the death of the Applicant’s legal guardian occurred or whether the Applicant made use of the available support services aboard ship for counseling.  Emotional stressors, youth and immaturity can all be factors leading to disciplinary problems, but the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions that led to significant misconduct.  Additionally certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge following the NJP for Article 112a, but instead retained the Applicant and issued a retention warning.  The Applicant was processed for separation following a second NJP.  The NDRB determined that a characterization of Under Other than Honorable Conditions was appropriate for the offenses.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  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 at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN 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