Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. NDXX-00000

ex-YN3, USN
ND06-01037

Current Discharge and Applicant’s Request:

Application Received:  				20060801
Narrative Reason for Separation:			MISCONDUCT
						COMMISSION OF A SERIOUS OFFENSE
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS ENTERPRISE CVN 65

Applicant’s Request:
	Narrative Reason change to:		N/A
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					200070709
The Discharge shall remain:			MISCONDUCT
						UNDER OTHER THAN HONORABLE CONDITIONS
Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE
Vote (characterization/reason)			UNANIMOUS/ UNANIMOUS
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			NO
Complete Discharge Package:			YES

Applicant’s Issues as Summarized by the Board:

1.  Propriety/Equity – Civilian Offense unrelated to Military
2.  Equity – Isolated Incident

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20000612 - 20000712 COG
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20000713
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20030626
Length of Service:				02  Yrs  11  Mos  14  Days

Does not exclude lost time, if any.

Time Lost During This Period:			NONE
Days Unauthorized Absence:			     
Days Confinement:				     

Education Level:  				12
Age at this Enlistment:  				17 PARENTAL CONSENT
AFQT:  						72
Highest Rate/Rank:				YN3

Performance Evaluation Averages (number of marks):
Performance:					3.7 (3)
Behavior:					4.0 (3)
OTA:						3.6
Extracted from:  
Applicant’s Supporting Documents  ☐  Other:       ☐

Awards and Decorations (as listed on the DD Form 214):
NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST, ENLISTED AVIATION WARFARE SPECIALIST

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030301:	Applicant was arrested by the Norfolk Police Department and charged with robbery and use of a firearm in the commission of a felony.

20030425:	Applicant’s statement.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Administrative Board Procedure
Date Notified:					20030305
Reason for Discharge				MISCONDUCT
						COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20030422
Rights Elected at Notification:
Consult with Counsel			ELECTED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s)			ELECTED
GCMCA Review				NOT APPLICABLE
						
Recommendation of Commanding Officer (date):	UOTHC  20030502
Discharge directed by (date):			COMCRUDESGRU TWELVE 20030621
Narrative reason directed:				COMMISSION OF A SERIOUS OFFENSE
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20030626

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				32
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				32

Applicant’s Issues as Summarized by the Board:

1.  Propriety/Equity – Civilian Offense unrelated to Military
2.  Equity – Isolated Incident

The Applicant argues that his discharge should be upgraded because he was discharged for a civilian offense that was unrelated to the military.  Members may be separated for Misconduct due to commission of a serious offense based on a serious military or civilian offense when specific circumstances of offense warrant separation, and the offense would warrant a punitive discharge per MCM, appendix 12 for same or closely related offense.  The Applicant was charged with Robbery and Use of a Firearm in the commission of a Felony.  Violations of Article 122 (Robbery) and Article 134 (Assault With Intent To Commit Robbery) are considered serious offenses for which a punitive discharge is authorized.  Additionally pursuant to Naval Military Personnel Manual (NAVPERS), Article 1910-142, processing is mandatory for misconduct which resulted in or had potential to result in death or serious bodily injury.  Examples given in that section include armed robbery and assault with a deadly weapon.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant states his discharge was based “on one isolated incident in 28 months of service with no adverse action.” Despite a service member’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  Mandatory processing for separation is required for Sailors who commit armed robbery.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  There is credible evidence in the record that the Applicant committed Robbery and used a firearm during the robbery in question.   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.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142 [formerly 3630605], 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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 violations of UCMJ, Article 122 (Robbery) and Article 134 (Assault With Intent To Commit Robbery).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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