ex-OS3, USN

Current Discharge and Applicant’s Request

Application Received:  20080911
Characterization of Service Received:  OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20000630 - 20010625  	Active:    20010626 - 20051024  HON

Period of Service Under Review:
Date of Enlistment:  20051025	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060322	Highest Rank/Rate:  OS2
Length of Service:   Years     Months   27 Days
Education Level:  	AFQT:  64
Evaluation Marks:  Performance:  NFIR                 Behavior:  NFIR           OTA:  NFIR

Awards and Decorations (per DD 214):  NDSM SSDR BER GCM ESWQ EAWQ

Periods of UA/CONF:  

NJP:  
- 20060309:  Article 92 (Violation of a lawful written order), 4 specifications
                     Awarded:      Suspended:  

SCM:      SPCM:       CC:      Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM    
                               20010626 TO 20051024”
	
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:    
                    Other Documentation:  

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

Applicant’s Issues

1.  In-service performance.
2.  Circumstances under which discharge occurred were unprecedented – Non-judicial punishment (NJP) improper.
3.  DD-214 Code HKQ implies he unknowingly waived an administrative board.

Decision

Date:  20090122		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

: ()  .  The Applicant is seeking an upgrade to “Honorable” and contends his 
discharge inaccurately reflects the type of Sailor he was as he was a good Sailor who served with honor, courage and commitment.  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 service was marred by one NJP on 9 March 2006, for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation).  Based on the seriousness of the offense committed and the lack of mitigating circumstances, the Board determined the awarded discharge characterization of “Other Than Honorable Conditions” to be appropriate.  The Applicant’s provided no documentation or additional evidence in support of his request and as such the Board determined the in-service performance was found not to be sufficient to justify an upgrade.  The awarded discharge was appropriate.  

Issue 2:  (Equity) RELIEF NOT WARRANTED.  The Applicant claims his discharge was unprecedented and the NJP was based on hearsay and presumable evidence.  In regard to the Applicant’s claim, he has not provided any evidence to support this contention nor demonstrated how it negatively impacted his characterization of service.  The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings.  Therefore, hearsay evidence is permissible and the Applicant’s contention the NJP was based on hearsay and presumable evidence has no merit.  The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings.  

When the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The Board determined the Applicant’s misconduct was a significant departure from that expected of a U. S. Sailor and the awarded discharge characterization was appropriate.  An upgrade would be inappropriate. 

Issue 3:  (Equity) RELIEF NOT WARRATNED.   The Applicant contends he was given an HKQ on his DD-214, implying he unknowingly waived the administrative board which could have negated the discharge.  Per MILPERSMAN 1910-142, HKQ is a separation program designator code used when a service member is involuntarily discharged based on misconduct due to the commission of a serious offense.  This code does not imply the service member “unknowingly waived an administrative board”.  Based on a review of available evidence, the Board determined HKQ was the appropriate separation designation code since the Applicant was processed for misconduct due to the commission of a serious offense.  Navy regulations require all service members being involuntarily discharged to be informed of the basis for such and notified of the right to counsel with a military or civilian attorney, copies of the evidence and review by higher authorities prior to being discharged.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention he unknowingly waived the administrative board.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful 

failure to meet the requirements of Navy standards and falls far short of what is expected from a U. S. Sailor.  The Board determined the awarded discharge was appropriate, an upgrade would be inappropriate.  

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

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 violation of the UCMJ, Article 92, Failure to obey a lawful order or regulation.

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