ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20101019
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)	20060706 - 20060911  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060912	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20091030	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   9 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  3.0 (4)	Behavior:  2.5 (4)	OTA:  2.67
Awards and Decorations (per DD 214):	   

Periods of UA/CONF:  

NJP:  

- 20061129:	Article  (Derelict in the performance of his duties, possessed an unauthorized cell phone, 20061113)
	Awarded:    Suspended:  

	- NFIR:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) [Extracted from Evaluation Report & Counseling Record dated 20090715]
	Awarded: NFIR  Suspended:  NFIR

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20061023:	For your disclosure to the Recruit Quality Assurance Team at Moment of Truth regarding a Chart “B” offense: Loitering.

- 20061129:	For CO’s Mast of 20061129; VUMCJ Art 92, Dereliction in the performance of duties.

- 20070126:	For VUCMJ Art 121, Wrongful appropriation.

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, MERITORIOUS UNIT COMMENDATION, ENLISTED SURFACE WARFARE SPECIALIST”

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 20 May 2008 until 9 November 2009, 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.	Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.
2.	Applicant contends his discharge was improper/inequitable as other Sailors have been retained with the same number of non-judicial punishments (NJPs).
3.	Applicant contends his discharge warrants an upgrade consideration due to an abusive and unsupportive command environment.
Decision

Date:  20120112		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 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 identified two decisional issues for the Board’s consideration.  Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board 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’s record of service included  NAVPERS 1070/613 (Page 13) warnings and   nonjudicial punishments (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward a warrant, noncommissioned, or petty officer, extracted from evaluation and counseling report dated 25 Aug 2008 - 15 Jul 2009) and Article 92 (Failure to obey an order or regulation, dereliction in the performance of his duties, wrongfully possesses an unauthorized cell phone, 13 Nov 2006).  Based on the repeated offenses committed by the Applicant, his command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether he exercised or waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  However, the JKA separation code (SPD) listed on his DD Form 214 indicates he was not entitled to an administrative board proceeding.  The Applicant was separated from the Navy on 30 Oct 2009 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

:  (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.  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 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.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable as other Sailors have been retained in the Navy with the same number of NJPs.  Despite a service member’s prior record of service, certain conduct warrants mandatory processing per the Naval Military Personnel Manual (MILPERSMAN) for administrative separation from the Naval Service in order to maintain proper order and discipline.  Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment.  Moreover, since each decision regarding retention or separation of a servicemember is made on a case by case basis, based on the facts and circumstances specific to the individual case, comparing cumulative numbers of NJP between service members is irrelevant.  In the Applicant’s case, he was separated for pattern of misconduct, per MILPERSMAN section 1910-140, which requires the service member to have received two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof),and a violation of a NAVPERS 1070/613 Retention Warning.  Since the Applicant received two NJPs and three Retention Warnings, his administrative separation for pattern of misconduct was proper.

When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable.  A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service included violation of UCMJ Articles 91 and 92 (and Article 121, though the specific circumstances were not found in the record), which constitutes the commission of a serious offense and is punishable by a Bad Conduct Discharge and a minimum of 3 months confinement if awarded at trial by courts-martial (special or general).  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for an upgrade in the characterization of service to Honorable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge warrants an upgrade consideration due to an abusive and unsupportive command environment.  The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the Board conducted a detailed examination of the Applicant’s records and could find no evidence to support his contention of an abusive command environment and administrative or legal impropriety.  His final Evaluation and Counseling Report (dated 14 Aug 2009-30 Oct 2009) stated, “(the Applicant’s) consistent misbehavior is counter to good order and discipline.  He lacks self-control and the ability to maintain military bearing…he shows very little interest in his responsibilities…. (The Applicant) does not work well with peers and tends to initiate conflict within his division.”  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.  After careful consideration and deliberation, and with no evidence submitted by the Applicant to rebut or question the presumption of regularity, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, the Board 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  discharge.  The Applicant is directed to the Addendum for additional information.

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