ex-UTCA, USN

Current Discharge and Applicant’s Request

Application Received: 20101021
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)	20030423 - 20030818  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030819	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050503	Highest Rank/Rate:  UTCN
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  73
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	Rifle    

Periods of UA/CONF:  

NJP:  

- 20040329:	Article  (Failure to obey an order or regulation, underage drinking)
	Awarded:     Suspended:    (suspend 6 months)

- 20041202:	Article  (Failure to obey an order or regulation, underage drinking, 20041031)
	Awarded:  (to E-2) CCU (30 days)   Suspended:   (suspend 6 months)
	* Suspension vacated on 20050406 due to further misconduct

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20040330:	For CO’s NJP, failure to obey lawful order by wrongfully consuming alcohol while under the age of 21.

Administrative Corrections to the Applicant’s DD 214

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

 SEPARATION AUTHORITY, should read:  “MILPERSMAN 1910-140”
Block 26, SEPARATION CODE, should read:  “JKA”
Block 28, NARRATIVE REASON FOR SEPARATION, should read:  “PATTERN OF MISCONDUCT”

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 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

D.  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 92.  

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

Applicant’s Issues

1.	Applicant seeks RE code and discharge upgrade to reenlist in the U.S. Armed Forces.
2.	Applicant contends his discharge was inequitable/too harsh based on the circumstances surrounding his misconduct. 

Decision

Date:  20120126		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall   due to an Administrative Error.

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 one decisional issue for the Board’s consideration.  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) retention warning for underage drinking (30 Mar 2004) and   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 2 specifications: wrongfully consumed alcohol while under the age of 21, on or about 29 Mar 2004 and 31 Oct 2004).  The record also indicates the Applicant was referred for alcohol rehabilitation treatment, however, the Board could not determine the specific rehabilitation treatment plan he received.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing (for pattern of misconduct, commission of a serious offense, and alcohol rehabilitation failure) using the  procedure on 2 Apr 2005, the Applicant elected to exercise his right to consult with qualified counsel, but waived  rights to submit a written statement and request a General Court-Martial Convening Authority review.  On 19 Apr 2005, the Separation Authority directed that the Applicant be discharged with a General (Under Honorable Conditions) characterization of service due to Pattern of Misconduct (with the applicable separation program code of JKA).  The Applicant was separated from the Navy on 3 May 2005 with a General (Under Honorable Conditions) discharge.  For reasons unclear to the NDRB, the Applicant’s DD Form 214 reflected he was separated for Misconduct, but the Separation Authority (Block 25) was improperly left blank.  Further, the SPD code HKQ listed in Block 26 is specific to separations for Misconduct (Commission of a Serious Offense) when the right to an administrative separation board is waived by the service member.  Since the Applicant was not recommended for an Under Other Than Honorable Conditions discharge, he did not rate an administrative separation board, and so this block is incorrect.  Appropriate changes will be made to the Commander, Navy Personnel Command.

:  (Nondecisional) The Applicant seeks an RE code and 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 inequitable/too harsh based on the circumstances surrounding his misconduct.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline; violation of UCMJ Article 92 (Failure to obey an order or regulation) meets this standard.  Moreover, a pattern of misconduct, as evidenced by repeated offenses (i.e., NJP followed by NAVPERS 1070/613 retention warning followed by NJP), is also grounds for administrative separation from service.  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.  The characterization of service is a description of the total service provided during the member’s enlistment.  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.  In the Applicant’s less than two years in service, he had multiple violations of UCMJ Article 92, which constitutes the “commission of a serious offense” and is punishable by a Bad Conduct Discharge and a minimum of 6 months confinement if adjudicated at trial by courts-martial.  In the Commanding Officer’s endorsement of the Applicant’s Administrative Separation package, he stated: “(The Applicant) appeared at Commanding Officer’s Non-judicial Punishment at two separate commands for the same offense.  (The Applicant) was warned and given the proper alcohol treatment to overcome his drinking problems.  (The Applicant) ignored all the warnings and treatment and continued to commit misconduct.  (The Applicant) does not possess the potential for further Naval Service.  He does not live up to the Navy’s Core Values of Honor, Courage, and Commitment.  I therefore authorize the discharge of (the Applicant) with his characterization of service being a General (Under Honorable Conditions).”  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, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service to Honorable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the administrative separation process, the Board found   However, administrative errors occurred during the completion of the Applicant’s DD Form 214.  Therefore, the awarded characterization of service shall   but the narrative reason for separation shall change to  to reflect the original intent of the Applicant’s Commanding Officer and Separation Authority.  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