ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20100707
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS) /UNCHARACTERIZED
	Narrative Reason change to:	ANY

Summary of Service

Prior Service:
Inactive:	USA NGB       19950303 - 19981028  Interservice Transfer    Active: 19981029 - 19990311 (USA - ELS)
                  USNR (DEP)   19990930 - 19991006  

Period of Service Under Review:
Date of Current Enlistment:  19991007	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20031107	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   1 Day(s)
Education Level:  +	AFQT:  36
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  2.50

Awards and Decorations (per DD 214):	NONE

Period of UA: 20011010 - 20011011 (1 day)
Periods of Confinement: 20011011 - 20011221 (71 days Pre-trial Confinement)

NJP:  

- 20001024:	Article  (Assault - Simple)
	Awarded:     Suspended:  

- 20001208:	Article  (Communicating a threat) [Extracted from the record of trial]
	Awarded:   Suspended:  

SCM:  

SPCM:  

- 20011221:	Article  (Unauthorized absence 200111001 - 20011011, 1 day)
	Article  (Disrespect toward superior commissioned officer)
	Sentence: 60 days , , 

CC:  

Retention Warning Counseling:  

- 20031001:	For failing my physical fitness assessment

Administrative Corrections to the Applicant’s DD 214

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

	  “20011010-20011011; 20011011 -20011221”
	
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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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: The Applicant seeks an upgrade in the characterization of his discharge in order to be eligible for Department of Veterans Affairs (VA) educational benefits.   

2.	Decisional issues: The Applicant seeks an upgrade in the characterization of his discharge contending that the misconduct of record for which he was discharged was caused and is mitigated by severe family and personal problems occurring at the time of the misconduct.

Decision

Date:  20111020	       	Location:  Washington D.C.	Representation:  

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

Discussion

In reviewing discharges, the NDRB 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.  With respect to a discharge adjudged by a court-martial case, 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.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial are presumed by the NDRB to be established facts.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  

The Applicant’s service record documents entry into military service at age 25 on a 4-year enlistment contract with an Operations Specialist training guarantee, achieving the rating of Operation Specialist.  The Applicant’s period of service under review reflects one NAVPERS 1070/613 retention-counseling warning and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault- Simple) and Article 134 (Communicating a threat).  

Additionally, the Applicant’s record of service documents a trial by Special Court-Martial for violation of Article 86 (Absent without leave - 1 day) and Article 89 (Disrespect toward a superior commissioned officer).  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  Pursuant to a signed pre-trial agreement, the Applicant exercised his right to trial by military judge alone and further elected to plead guilty to the charges and specifications as referred; in consideration, the convening authority agreed to suspend any period of confinement in excess of 75 days.  Given the Applicant’s testimony and the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 60 days, and reduction in rank to E-1/Seaman.  Due to administratively applied credits for pre-trial confinement (71 days), the Applicant was released from custody with time served.  The U.S. Navy–Marine Corps Court of Criminal Appeals reviewed the case without any assignment of error and affirmed the decision on 29 July 2003, ordering the Bad Conduct discharge executed.

Nondecisional issue – The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate access to VA educational benefits.  With respect to a Bad Conduct Discharge, regulations limit the NDRB’s review solely to a determination of clemency in consideration of the equity of a discharge.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating VA educational benefits; as such, the NDRB has no authority to upgrade or change a discharge solely for this purpose and cannot form a basis of relief. 

Issue 1: (Clemency/Equity) PARTIAL RELIEF WARRANTED.  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to Uncharacterized or General (Under Honorable Conditions), contending that the misconduct of record for which he was discharged was caused and is mitigated by severe family and personal problems occurring at the time of the misconduct.  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and the circumstances unique to this case.  
Given the unique circumstances of the case, coupled with the reason for, and the nature of, the misconduct, the NDRB determined that the punishment was inequitably harsh and that some form of relief was warranted.  

Characterization of service at discharge is recognition of the quality of a Sailor’s performance and conduct.  Most Sailors serve honorably; in fairness to them, commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due.  The Applicant requested a change to an Uncharacterized or General discharge.  In accordance with Article 1910-308 of the MILPERSMAN, an Uncharacterized discharge is warranted only when separation is initiated while a member is in an entry level status (i.e., within the first 180 days of continuous active duty).  The evidence of record documents that the Applicant served for more than 180 days prior to his misconduct; as such, an Uncharacterized discharge is not warranted and would be improper.  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.  However, 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.  After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the verbatim transcript of the trial, the NDRB discerned an inequity in the characterization of service and determined that clemency, as requested, was warranted.  Furthermore, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission that did constitute a significant departure from the conduct expected of members of the Naval Service.  As such, by a vote of 5-0, the NDRB determined that the characterization of service shall change to Under Other Than Honorable Conditions.  Partial relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the Board found that  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, but 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  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