ex-HTFN, USN

Current Discharge and Applicant’s Request

Application Received: 20150331
Characterization of Service Received:  (per DD 214) UNDER HONORABLE CONDITIONS (GENERAL)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (SERIOUS OFFENSE) 
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)	20090521 - 20100405  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20100406	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20140314	Highest Rank/Rate:  HT3
Length of Service:  03 Year(s)   11  Month(s)   08 Day(s)
Education Level:  12	AFQT:  47
Evaluation Marks:	Performance:  3.7 (4)	Behavior:  2.7 (4)	OTA:  3.10

Awards and Decorations (per DD 214):	Pistol MM NDSM SSDR HSM JMUA ESWS

Periods of UA/CONF:  NONE

NJP:  2

- 20121012:	Article 92 (Failure to obey order or regulation)
	Article 108 (Military property of United States-Loss, damage, destruction, or wrongful disposition)
	Article 109 (Property other than military property of United States-Waste, spoilage, or destruction) 
	Awarded: RESTR EPD FOP Suspended:  RESTR EPD FOP 

- 20140220:	Article 107 (False official statements) 2 specifications
	Specification 1: O/A 20140203 onboard USS RONALD REAGAN (CVN76), SNM with intent to deceive did make a false official statement to a Command Master Chief, to wit: “I never heard the word BABS (Black a_ed Burns) used in the work center” or words to that effect.. 
	Specification 2:  O/A 20140203 onboard USS RONALD REAGAN (CVN76), SNM with intent to deceive did make a false official statement to a Command Master Chief, to wit: “I have never used derogatory statements” or words to that effect.
	Article 134 (General article; wrongfully creating an intimidating, hostile, or offensive work environment)
	Awarded: RESTR EPD FOP RIR   Suspended:  NONE 

SCM:  NONE  SPCM:  NONE  CC:  NONE

Retention Warning Counseling:  1

- 20121012:	For on divers occasions, between 201111 and 201209, you verbally harassed another Sailor in your workcenter, and damaged personal and government property.  

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, SEA SERVICE DEPLOYMENT RIBBON, HUMANITARIAN SERVICE MEDAL, MARKSMAN 9MM PISTOL, JOINT MERITORIOUS UNIT AWARD, ENLISTED SURFACE WARFARE SPECIALIST”

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

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 107 (False official statements).

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

Applicant’s Issues

1.	The Applicant contends that the discharge was unjust because the he had no prior offenses, he was joking and did not intend malice, and others charged with the same offense did not receive the same severity of punishment

Decision

Date:  20150618	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 (SERIOUS OFFENSE).

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 completed 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) warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article 107 (False official statements) , Article 108 (Military property of United States-Loss, damage, destruction, or wrongful disposition), Article 109 (Property other than military property of United States-Waste, spoilage, or destruction), and Article 134 (General article).  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel but exercised his right to submit a written statement, and request a General Court-Martial Convening Authority review. 

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the discharge was unjust because the he had no prior offenses, he was joking and did not intend malice, and others charged with the same offense did not receive the same severity of punishment.  The Applicant provided copies of several military awards with his application.  The Applicant’s record documents that he went to NJP twice for offenses where he created a hostile or offensive work environment.  In the administrative separation recommendation, the Commanding Officer (CO) cites that the first NJP in October of 2012 was for sexually harassing a female sailor, and the second NJP in February 2014 was for making racial slurs, using other derogatory language, and then providing false official statements when questioned by the Command Master Chief.  The CO goes on to comment on a written statement submitted by the  service member which alleges that the punishment and separation were unfair because he received more severe punishment than others involved and was the only one being processed for separation.  The CO responds that the punishment was appropriate because of the individual’s history, and because he was the instigator and played the largest role in February 2014 incident.  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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).  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