Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-01716

JACOBSON, Jennifer A., 496-90-1727, ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20080812
Characterization of Service Received: GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT SERIOUS OFFENSE
Authority for Discharge: 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)	20000822 - 20010220  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 20010221	Period of Enlistment: 4 Years   33 MONTHS Extension	Date of Discharge: 20070215
Length of Service: 06 Years   04  Months  23 Days	Education Level: 12	Age at Enlistment: 19	AFQT: 71
Highest Rank/Rate: 	HM3	Evaluation Marks: Performance:	4.0 (3)	Behavior: 4.0 (3)	OTA: 3.75
Awards and Decorations (per DD 214):	Pistol MM NDSM OSR (2) GWOTSM

NJP:  1
- 20031210:  Article 128 (Assault)
                     Article 134 (Communicating a threat)
                     Awarded:  FOP RIR   Suspended:  FOP

- 20061208:  NJP Pending on Article 92 (Failure to obey order or regulation), but was refused by HM3 JACOBSON,
                     who asked for a Court-Martial.  The Command decided to administratively separate HM3 JACOBSON    
                     instead.
                     Awarded: NFIR   Suspended:  NONE

Retention Warnings:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “20010221”
	Block 12c, Net Active Service This Period, should read: “05 11 25”
	
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:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☒
              Additional Statements:
                             From Applicant:  ☒	From Representation:         ☐	From Congress member:    ☐

Related to Post-Service Period (cont):

              Other Documentation (Describe): ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 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 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 the UCMJ, Article 128 (Assault) and Article 134 (Communicating a threat).

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

Applicant’s Issues
1.  Discharge unjust and unfair

Decision

Date:  20081120	          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

Issue 1:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends her discharge was unjust and unfair based on the circumstances surrounding the events leading to her discharge.  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.  The Applicant’s record of service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ):  Article 128 (Assault) and Article 134 (Communicating a threat).  These violations are considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  In addition, the Applicant was to be taken to her second NJP for violation of Article 92 (Failure to obey an order or regulation), but refused NJP and requested a Court-martial.  The charges centered on an improper fraternization in a school environment between student and instructor.  Due to the school environment the Applicant was currently attending when the infractions allegedly occurred, it was determined it would be quite costly to hold a court-martial in San Diego or Texas on the need for transporting personnel to one place or the other, and the potential time delays to conduct the courts-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The Applicant has requested an upgrade in their characterization to “Honorable”.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  Notwithstanding the Applicant’s second pending NJP, the Board acknowledged the Applicant’s first NJP based on violations of Article 128 (Assault) and Article 134 (Communicating a threat) of December 2003 was significant enough to support a “General (Under Honorable Conditions)” discharge characterization  and determined the awarded characterization was appropriate; an upgrade would be inappropriate.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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.  Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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; documentation of a drug free lifestyle; continued higher education and character witness statements.  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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.
 
Besides the personal statement provided on the DD Form-293, the Applicant also provided documentation showing she is a registered Dental Assistant and provided her naval evaluation reports.  However, to warrant an upgrade to “Honorable” the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined based on the limited documentation provided an upgrade would be inappropriate and the characterization of 

service received, “General (Under Honorable Conditions)”, was an appropriate discharge characterization considering the UCMJ violations involved.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

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 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:  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 or is referred to a court martial 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 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 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 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 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 	UA – Unauthorized absence	NJP – Non-judicial 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			CC - Civilian conviction

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