ex-MM3, USN

Current Discharge and Applicant’s Request

Application Received:  20081205
Characterization of Service Received:  
Narrative Reason for Discharge:  (SERIOUS OFFENSE)
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20020329 - 20021112  	Active:	

Period of Service Under Review:
Date of Enlistment:  20021113	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070405	Highest Rank/Rate:  MM2
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  65
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  2.5 (2)	OTA:  2.86

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  

NJP:  
- 20070119:	Article 108 (Destruction of government property)
	Awarded:    Suspended:    Appealed:  undated.  Appeal denied:  20070201

SCM:     

SPCM:     

CC:     

Retention Warning Counseling:  

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:  

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 108.

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

Applicant’s Issues

1. Discharge inequitable because it was based on two isolated incidents in over 4 years of service. 
2. In-service performance.
3. No fair trial or real investigation.

Decision

Date:  20090312		Location:  Washington D.C.	Representation:  

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

Discussion

:   . The Applicant contends his discharge was inequitable because it was based solely on two isolated incidents in 48 months of service with no other adverse action.  Additionally, the Applicant contends his performance up to that point had been above average.  Despite a service member’s prior record of good service, certain serious offenses, even though isolated, warrant separation from the Naval service to maintain proper order and discipline.  The Applicant’s service was marred by one NJP on 19 January 2007, for violation of the Uniform Code of Military Justice (UCMJ), Article 108 (Destruction of government property), in that he willfully damaged property valued at $1000.00 by repeatedly striking a propulsion lube oil sump and drain suction header with a hammer.  He was subsequently discharged due to the commission of a serious offense as evidenced by the NJP for the destruction of government property.  Based on the aforementioned evidence, the Board determined there was a sufficient basis for the discharge and the Applicant’s in-service performance was not sufficient to mitigate the misconduct.  In response to the Applicant contention “not one penny has been spent to correct the reported thousands of dollars in damages”, the alleged failure to make repairs does not excuse or mitigate wrongdoing by the Applicant.

In the transmittal letter of 01 March 2007, the commanding officer recommended the Applicant be discharged with a General (Under Honorable Conditions) and noted his disregard for rules and regulations of the Navy.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  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.  Taking into consideration the Applicant’s length of service, offense committed, and other evidence submitted by the Applicant (including character statements), the Board determined an upgrade was not warranted.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade.  Therefore, relief is denied.

:  ().  The Applicant further contends there was no fair trial and no real investigation into the facts of his case.  He also contends his General discharge was a result of the commanding officer resenting him.  There is no evidence in the record the Applicant requested or was convicted at a court- martial of any type.  Therefore, the Applicant’s contention that he did not have a fair trial is without merit.  Further, there is no requirement for the commanding officer to convene an investigation prior to initiating all NJP proceedings or administrative separation processing unless he determines additional evidence or information is needed.  Based on a review of the record and facts unique to this case, the Board has determined there was sufficient evidence to support the basis for discharge due to the commission of a serious offense.  There was no documented evidence in the record, nor provided by the Applicant indicating wrongdoing by the commanding officer, the existence of an error of fact, law, procedure, or discretion at the time of discharge.  Therefore, relief is denied.

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   

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