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

Docket No. ND09-01201

ex-OS1, USN

Current Discharge and Applicant’s Request

Application Received: 20090403
Characterization of Service Received:  (per DD 214)  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (corrected)  MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: (per DD 214)  MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19940624 - 19941025  COG	Active:	USN	19941026 - 19990608  HON
				USN	19990609 - 20041006  HON

Period of Service Under Review:
Date of Current Enlistment:  20041007	Age at Enlistment:  29
Period of Enlistment:  6 Years  NO Extension
Date of Discharge:  20070727	Highest Rank/Rate:  OS1
Length of Service:  02 Year(s)   09  Month(s)   20 Day(s)
Education Level:  12	AFQT:  35
Evaluation Marks:	Performance:  4.2 (4)	Behavior:  3.7 (4)	OTA:  4.10

Awards and Decorations (per DD 214):	NDSM GWOTSM JSAM NMCAM (3) GCM (3) AFEM GWOTEM SSDR (2)

Periods of UA/CONF:  NONE

NJP:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  NONE

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 19990609 TO 20041006”
	Block 26, Separation Code, should read: “GKQ”
	Block 28, Narrative Reason for Separation, should read: “SERIOUS OFFENSE”
	
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/To Representation:	☒	From/To 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 107 (False official statement) and Article 132 (Frauds against the United States). 

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

Applicant’s Issues

1.  Applicant claims her discharge is based on flawed evidence.  	
2.  Applicant’s basis for discharge does not meet requirements for serious misconduct.	
3.  Applicant claims record of service was not considered in decision to discharge.

Decision

Date:  20091203	DOCUMENTARY REVIEW        Location:  Washington D.C.	Representation:  Civilian Counsel

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 (SERIOUS OFFENSE).

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 Applicant’s record of service was excellent until an investigation into fraud and making false official statements resulted in her separation from the Navy.  Based on the offense(s) committed by the Applicant, her command administratively processed her for separation due to the commission of a serious offense.  When notified for administrative separation processing, the Applicant elected her rights to consult with qualified counsel, submit a written statement, and request an administrative board.  

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends her discharge is based on flawed evidence.  The Applicant’s case was investigated by the COMNAVCENT Inspector General (IG), a retired judge advocate, and a Naval Criminal Investigative Service (NCIS) agent to determine whether she committed fraud against the United States.  Per the COMUSNAVCENT Hotline Completion report 1-07, 22 January 2007; the report identified 3 allegations (one Article 132 and two Article 107s) against the Applicant, all of which were substantiated based on all the facts in the case.  An administrative discharge board was convened and voted (3-0) that the preponderance of the evidence supports that the Applicant committed the offense, (2-1) in recommending suspension of separation for 12 months and (3-0) that the character of service should be General (Under Honorable Conditions).  Based on these determinations, the NDRB opined that the allegations were investigated, the facts of that investigation were presented to a competent board with the Applicant’s counsel present, and that a decision to separate her from the Navy was properly reviewed and executed.  Relief denied.      

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant’s contends her basis for discharge does not meet requirements for serious misconduct.  Per the Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, appendix 12 under the UCMJ, members may be separated based on commission of a serious military or civilian offense when specific circumstances of offense warrant separation; and the offense would warrant a punitive discharge for same or closely related offense.  A commission of a serious offense does not require full adjudication by non-judicial or judicial proceedings; however, offense must be substantiated by a preponderance of evidence (e.g., copy of police record, NCIS investigation, etc.).  Once the investigation was complete, the Deputy Force Judge Advocate stated that the command could proceed with a court-martial or an administrative board.  The NDRB determined that her command’s decision not to pursue a court-martial did not conclude that her offense did not meet the criteria for serious misconduct.  The NDRB determined that the Applicant’s offenses, per the UCMJ, warranted a punitive discharge and that she was properly discharged from the Navy.  Relief denied. 

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends her record of service was not considered in the decision to discharge.  Despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The NDRB opined that the command went through considerable lengths to investigate the matter at hand and eventually had to discharge her based on the seriousness of the charges (fraud, false statements to superiors, NCIS investigators).  The NDRB determined that the Applicant could have received a less favorable discharge had she not been considered a stellar sailor by many in her command at the time of the misconduct.  Ultimately, the command’s decision to discharge the Applicant centered on whether to keep a senior sailor, whose integrity has been compromised.  In the end, the command chose to discharge her with a General characterization, based on her record of service.  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 MISCONDUCT (SERIOUS OFFENSE).  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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 Association of Service Disable 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 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 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:  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 BCNR can make changes to reenlistment codes.  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 	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	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – 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