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

Docket No. ND15-01035

ex-PO2, USN

Current Discharge and Applicant’s Request

Application Received: 20150504
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) UNSATISFACTORY PERFORMANCE
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-156 [UNSAT PERFORMANCE]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19940323 - 19940725  COG	Active:	USN	19940726 - 19980723  HON
				USN	19980724 - 20021106  HON

Period of Service Under Review:

Date of Current Enlistment:  20021107	Age at Enlistment:  32
Period of Enlistment:  6 Years  NO Extension 
Date of Discharge:  20080208	Highest Rank/Rate:  AM1
Length of Service:  05 Year(s)   03  Month(s)   20 Day(s)
Education Level:  12	AFQT:  71
Evaluation Marks:	Performance:  3.5 (6)	Behavior:  3.0 (6)	OTA:  3.22

Awards and Decorations (per DD 214):	NDSM(2) AFEM(2) MUC(2) SSDR(4) AFSM(2) NATO GCM(4) NMCAM(2) EAWS

Periods of UA/CONF:  NONE

NJP:  1

- 20060921:	Article 86 (Absence without leave; 20060908-20060911, 4 days)
	Article 92 (Failure to obey order or regulation)
	Article 107 (False official statements)
	Awarded: RIR FOP  Suspended:  FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20060921:	For the following deficiencies in your performance and/or conduct:  OIC’s Mast of 21 September 2006 for violation of the UCMJ, Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), and Article 107 (False official statements)

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 940726 UNTIL 021106”

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 19 May 2008 until 
9 November 2009, Article 1910-156, SEPARATION BY REASON OF UNSATISFACTORY PERFORMANCE.

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)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant seeks enhanced employment opportunities.
2.	The Applicant contends his discharge was improper because he did not receive a retention warning or be afforded a rehabilitative opportunity specifically for his unsatisfactory performance.
3.	The Applicant contends his discharge processing was improper because his rights acknowledgement form had a mark of “N/A” in the block specifically asking if he elected to have his counsel present during an administrative separation board.
4.	The Applicant contends his command did not follow appropriate regulations when they issued him a general discharge characterization or equitably consider his over 13 years and 11 months of honorable active duty service as evidenced by his numerous awards and accolades.
5.	The Applicant contends his post-service conduct, to include business ownership, church membership, and degree pursuit, is worthy of an upgrade.

Decision

Date:  20150810	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

By a vote of 4-1 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain UNSATISFACTORY PERFORMANCE.

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 and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification), Article 92 (Failure to obey order or regulation, one specification), and Article 107 (False official statements, one specification).  Based on the violation of his Page 13 warning from 21 September 2006, his command’s notification of his indebtedness on 6 June 2007, the revocation of his security clearance, and the rating of 1.0 in block 36 (Military Bearing/Character) on his evaluation dated 12 November 2006, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel and request an administrative board on 20 July 2007.  The NDRB noted, and the Applicant provided, a conditional waiver request for his administrative board in exchange for an Honorable characterization of service on 23 July 2007.  The Applicant’s Commanding Officer endorsed the conditional waiver request and submitted it to the separation authority for consideration.  On 8 February 2008 the separation authority authorized the Applicant’s discharge with a GENERAL (UNDER HONORABLE CONDITIONS) characterization of service.

Issue 1:  (Nondecisional) The Applicant seeks enhanced employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper because he did not receive a retention warning or be afforded a rehabilitative opportunity specifically for his unsatisfactory performance.  The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process.  The NDRB found that the retention warning issued for the Applicant’s NJP was issued approximately nine months before the indebtedness notification that Applicant claims triggered his separation for unsatisfactory performance.  While the Applicant and his counsel claim this retention warning was unrelated to the Applicant’s issues with indebtedness, paragraph four states:  “Any further deficiencies in your performance and/or conduct will terminate the reasonable period of time for rehabilitation that this counseling/warning entry provides and may result in disciplinary action and processing for administrative separation.  All deficiencies or misconduct during your current enlistment, occurring before and after the date of this action will be considered.  Subsequent violations of the UCMJ, conduct resulting in civilian conviction, or deficient conduct performance of duty could result in administrative separation under Other than Honorable Conditions.”  

The evidence of the record denotes 45 days between the command’s notification of the Applicant’s indebtedness on 6 June 2007 and his notification of separation proceedings for unsatisfactory performance on 20 July 2007.  The record shows the Applicant’s separation proceedings occurred over the next six months and 20 days until his separation.  The NDRB finds the Applicant and his counsel’s argument concerning the specificity of his retention warning to be invalid.  The NDRB found no evidence in the record that shows the Applicant overcame his indebtedness or sought assistance at any time after his command’s initial notification until his discharge from service.  The NDRB did not find the documentation submitted by the Applicant to sufficiently rebut the presumption of regularity in government affairs.

Additionally, the NDRB notes that service members may be separated upon denial or revocation of a security clearance for cause thereby precluding the ability to perform duties in an assigned rating.  As a P-3 Systems Organizational Career Maintenance Technician the record shows that the Applicant was separated due to the loss of his security clearance resulting from the circumstances surrounding his NJP and found his command’s concerns about his personal reliability were likely exacerbated by the later discovery of his financial indebtedness.  This is documented within the Applicant’s Evaluation Report and Counseling Record dated 12 April 2007 and his Commanding Officer’s RECOMMENDATION FOR ADMINISTRATIVE SEPARATION letter dated 24 July 2007.  The record shows that between the Applicant’s NJP and his notification of administrative separation proceedings his command had been working with him to reassign and redesignate him into another occupational field but became frustrated with his lack of cooperation in such an endeavor.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge processing was improper because his rights acknowledgement form had a mark of “N/A” in the block specifically asking if he elected to have his counsel present during an administrative separation board.  The NDRB observed that the documentary evidence submitted by the Applicant shows this to be the case; however, it also contains another block that the Applicant initialed to signify that he elected to exercise his right to consult with qualified counsel concerning his separation proceedings in addition to providing the full name and rank of his counsel on the same form.  The NDRB also noted the Applicant’s legal counsel, at the time, signed the counsel certification block on the administrative separation notification documentation.  Given the Applicant’s apparent election of his right to consult with counsel and to request an administrative board on the documentation he provided for review along with the six month, 20 day processing time between his notification of separation proceedings and his separation the NDRB concluded regularity in government affairs occurred and that the Applicant fully exercised his rights during his separation proceedings.  The NDRB found this issue to be without merit.  Relief denied.

Issue4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his command did not follow appropriate regulations when they issued him a general discharge characterization or equitably consider his over 13 years and 11 months of honorable active duty service as evidenced by his numerous awards and accolades.  The NDRB conducted an exhaustive review of the Applicant’s service record and found that he was both properly and equitably separated in accordance with regulations concerning unsatisfactory performance.  To be separated for unsatisfactory performance a service member must either have one or more enlisted performance evaluation with 1.0 marks for any performance trait; have their security clearance revoked for cause thereby precluding the ability to perform assigned duties in their rating; or violate a NAVPERS 1070/613 warning that specifically addresses these deficiencies.  The NDRB found that the Applicant met all three criterion as he had a 1.0 mark in block 36 (Military Bearing/Character) on his evaluation dated 12 November 2006; he had his security clearance revoked as a result of his NJP of 21 September 2006 as documented on his evaluation dated 12 April 2007; and he violated his NAVPERS 1070/613 counseling dated 21 September 2006 when his command was notified of his indebtedness on 6 June 2007.

The Applicant completed his first two enlistment periods with an Honorable characterization of his service for those periods of service; however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Applicant’s NJP, revocation of security clearance, and subsequent discovery of financial indebtedness failed to meet the standard of acceptable conduct and performance for Naval personnel.  Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  Relief denied. 

Issue5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct, to include business ownership, church membership, and degree pursuit, is worthy of 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 an academic transcript from Le Cordon Bleu College of Culinary Arts-Dallas and a prepared statement from his counsel.  The Applicant could have provided documentation as 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, 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 UNSATISFACTORY PERFORMANCE.

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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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