ex-MMFA, USN

Current Discharge and Applicant’s Request

Application Received: 20090716
Characterization of Service Received:    
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)	20000616 - 20000629  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20000630	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040420	Highest Rank/Rate:  MM3
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  32
Evaluation Marks:	Performance:  2.4 (5)	Behavior:  2.4 (5)	OTA:  2.50

Awards and Decorations (per DD 214):	   

Periods of UA/CONF:	UA:  20010914-20010916 (3 days); 20030807-20030808 (1 day) 
CONF:  NONE  
Discharged in absentia

NJP:  

- 20021109:	Article  (Assault), 2 specifications
	Awarded:     Suspended:  

- 20040108:	Article  (UA), 2 specifications
	Specification 1: Go from appointed place of duty, to wit:  berthing cleaners on 20030814
	Specification 2: 20031203-20031204 (0215)
	Article  (Disrespect toward a Chief Petty Officer)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:     20021206:  For assault as evidenced in NJP dated 20021109.

Administrative Corrections to the Applicant’s DD 214

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

	Block 1, Name, should read: “CESPEDES, CARLOS MANUEL”
  “PATTERN OF MISCONDUCT”
	  “20010914-20010916; 20030807”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

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

Applicant’s Issues

1.	Nondecisional issues: Applicant seeks an upgrade in characterization of service at discharge in order to continue counseling and treatment with the Department of Veterans Affairs.  

2.	Decisional issues: (Equity) Applicant contends that his characterization of service at discharge warrants an upgrade as his misconduct were minor, isolated incidents and his conduct was further mitigated by an undiagnosed condition of Post Traumatic Stress Disorder (PTSD).  

Decision

Date:  20110201	         Location:  Washington D.C.	   Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

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 NDRB 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 identified one decisional issue to the NDRB.  The NDRB completed a thorough review of the circumstances that led to  discharge, and the discharge process, to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant enlisted with a pre-service waiver to enlistment qualification for dependents.  The Applicant’s enlistment contract included a Fireman Apprentice program enlistment guarantee.  The Applicant’s record of service contains one NAVPERS 1070/613 retention-counseling warning regarding his misconduct for assault and possible discharge or punitive or administrative legal ramifications if he failed to undertake corrective action.  Additionally, the Applicant’s record of service included two  for the following  of the Uniform Code of Military Justice (UCMJ):

•	Article 86 - Unauthorized Absence - 2 Specifications; Failure to go to his appointed place of duty and absenting himself from his command without authority (1 day) 
•	Article 91 - Insubordinate conduct toward a chief petty officer 
•	Article 128 - Assault - 2 specifications in that he did physically strike two other sailors.

In addition, the Applicant’s service reflect two other periods of unauthorized absence in violation of Article 86 of the UCMJ, which were not subject to administrative or punitive actions.  Based on the severity of offenses committed by the Applicant, and the pattern of misconduct established by the Applicant while in service,  command administratively processed  for separation pursuant to Article 1910-140 (Pattern of Misconduct) and Article 1910-142 (Commission of a Serious Offense) of the Naval Military Personnel Manual (MILPERSMAN).  The Applicant was notified of the two proposed reasons for administrative separation process using the  notification procedure; the Applicant elected to exercise  right to consult with a qualified legal counsel, to submit written matters to the Separation Authority, but chose to waive his right to present his reason for retention to an administrative hearing board.    

The Applicant’s official service record documents that he was a combat veteran, having served on board ship in support of Operation Enduring Freedom (Afghanistan) and Operation Iraqi Freedom (Iraq).  Furthermore, the Applicant provided documentation that indicates that he has been diagnosed – post service – with Post-Traumatic Stress Disorder (PTSD) and alcohol dependence by the Veterans Administration health care system.  The NDRB is authorized to consider post-service factors 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.  However, 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 in civilian life subsequent to leaving the service.  The Applicant provided post-service documentation for consideration by the NDRB to include: a personal statement to the NDRB and confirmation of VA treatment, residential alcohol treatment program completion, and technical skill training programs. 

:  (Nondecisional) - Applicant seeks relief by an upgrade in his characterization of service at discharge in order to continue his current mental health treatment through the Veterans Administration health care system.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, 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 solely to a determination of the propriety and the equity of a discharge.  

The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs, who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant may refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance.  

:  (Decisional) ()  PARTIAL .  Applicant contends that his characterization of service at discharge warrants an upgrade as his misconduct consisted of minor, isolated incidents and that his conduct was further mitigated by an undiagnosed condition of PTSD.  While the Applicant may feel that his diagnosis of PTSD was the underlying cause of his misconduct, the evidence of record contained in the Applicant’s Official Service Record reflects a long-term pattern of misconduct throughout his enlistment, only highlighted by his 2 NJPs and retention warning.  The Applicant’s initial misconduct preceded his combat service.  Upon returning from his combat deployment, the Applicant continued a pattern of willful misconduct by absenting himself from his unit, being disrespectful to seniors, and assaulting others while under the influence of alcohol.  The Applicant’s actions demonstrated that the Command’s efforts to rehabilitate and retain the applicant had failed and that he was unfit for continued military service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  .  

The Applicant was properly notified of the pending separation action and the chain of command’s recommendation that he receive an Under Other Than Honorable Conditions characterization of service at discharge.  The Separation Authority determined that the basis for separation was substantiated by a preponderance of the evidence and that separation from the service was warranted.  The Separation Authority further determined that discharge pursuant to a Pattern of Misconduct was the primary basis for the action and that an Under Other Than Honorable Conditions characterization of service was warranted.  The NDRB determined that the Applicant’s two non-judicial punishments, coupled with the NAVPERS 613 retention counseling-warning, properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 1910-140 of the MILPERSMAN.  As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  

Characterization of service at discharge is founded on the recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation.  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) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service  

Based on a review of the evidence available to the NDRB and the circumstances unique to this case, the NDRB determined that the characterization of service at discharge was not consistent with the characterization of discharge given others in similar circumstances and, as such, was inequitable.  The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of service at discharge, reflected honest and faithful service, but that significant negative aspects of the Applicant’s conduct and performance of duties outweighed the positive aspects of his military record.  By a vote of 3-2, the NDRB determined that the Applicant’s overall service warranted a General (Under Honorable Conditions) characterization of service at discharge.  Partial relief granted.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 Disabled American 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 their 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