Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. ND13-01176

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20130508
Characterization of Service Received:   
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	EARLY DISCHARGE

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	NFIR	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20100712	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20120427	Highest Rank/Rate:  HN
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  NFIR
Evaluation Marks:	Performance:  2.8 (4)	Behavior:  1.8 (4)	OTA:  2.42

Awards and Decorations (per DD 214):	Pistol     

Periods of UA/CONF:  

NJP:  

- 20120315:	Article  (Absence without leave)
	Article  (Failure to obey order or regulation)
	Article  (Drunken or reckless operation of vehicle, aircraft, or vessel)
	Awarded:     Suspended:   (vacated 20120323)

- 20120406:	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20120315:	For Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), and Article 111 (Drunken or reckless driving)

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:	

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

Applicant’s Issues

1.	The Applicant seeks a change in his RE-code to reenlist into the Navy and fulfill his enlistment obligation.
2.	The Applicant seeks an upgrade to receive service benefits and qualify for the G.I. Bill.
3.	The Applicant contends the punishments imposed at his nonjudicial punishments (NJPs) were too harsh and were inequitable compared against the alleged offenses.
4.	The Applicant contends his discharge was not ordered at his NJP. 
5.	The Applicant contends he was dealing with serious developmental, family mortality, and personal stress management issues and was not given promised counseling following his first NJP.
6.	The Applicant contends his discharge was improper and inequitable due to unresolved medical issues and inadequate treatment of his various conditions.
7.	The Applicant contends he warrants an upgrade based on his in-service conduct.
8.	The Applicant contends his discharge was unjust due to his Filipino/Hispanic ethnic background as compared to the majority authoritative Caucasian chain command.
9.	The Applicant contends his post-service conduct warrants consideration for an upgrade.
10.	The Applicant contends the Washington Navy Yard shooter received an Honorable discharge and committed much worse misconduct during his service than the Applicant who was discharged with a General discharge for minor offenses.

Decision

Date:  20140109	     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 Board did complete 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) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel, 1 specification).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Nondecisional)  The Applicant seeks a change in his RE-code to reenlist into the Navy and fulfill his enlistment obligation.  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.

:  (Nondecisional)  The Applicant seeks an upgrade to receive service benefits and qualify for the G.I. Bill.  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.  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.

:  (Decisional) ()  .  The Applicant contends the punishments imposed at his NJPs were too harsh and were inequitable compared against the alleged offenses.  The NDRB has no authority to change or overturn judicial or nonjudicial punishments found in an Applicant’s records.  The NDRB’s scope is limited to reviews of the propriety and equity of an Applicant’s discharge on an individual case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  The Applicant met the requirements for administrative separation for a Pattern of Misconduct (Naval Military Personnel Manual Article 1910-140) with his NJP - Page 13 retention warning - NJP.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his discharge was not ordered at his NJP.  The decision to administratively separate a servicemember is made independently of the imposition of NJP.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  After the Applicant’s second NJP, his commanding officer determined he was no longer fit to serve in the Navy and initiated administrative separation proceedings.  Based upon the evidence of record, the NDRB found no improprieties in the Applicant’s discharge processing.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends he was dealing with serious developmental, family mortality, and personal stress management issues and was not given promised counseling following his second NJP.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistments, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  Further, the assurance of rehabilitative rest and counseling promised after his second NJP by the Applicant’s senior enlisted supervisor was negated by the Applicant’s commanding officer’s decision to administratively discharge the Applicant for misconduct.  There were no improprieties surrounding this chain of events.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends his discharge was improper and inequitable due to unresolved medical issues and inadequate treatment of his various conditions.  Department of Defense regulations provide that disciplinary separations supersede disability separations.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claims of service negligence for in-service diagnosis and treatment of medical and psychological maladies.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The record clearly reflects his willful misconduct and demonstrated he was unfit for further 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.  Relief denied.

7:  (Decisional) ()  .  The Applicant contends he warrants an upgrade based on his in-service conduct.  The Applicant states that his character is demonstrated by promotion to E-3 and the presentation of award of a “Command Master Chief” coin for graduation from Navy recruit training.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

8:  (Decisional) ()  .  The Applicant contends his discharge was unjust due to his Filipino/Hispanic ethnic background as compared to the majority authoritative Caucasian chain command.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that racial discrimination or bias had anything to do with his discharge or discharge characterization.  In fact, his General discharge could be seen as lenient as misconduct of this nature often results in an Under Other Than Honorable Conditions characterization of service.  The Applicant’s 1 year and 9 months of service included a retention warning and two nonjudicial punishments for violations of UCMJ Articles 86, 92, and 111.  Further, his evaluation overall trait average was 2.42, which is reflective of below-average conduct.  The NDRB determined the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.   Relief denied.

9:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, evidence employment, evidence of college attendance, and a criminal records check showing he does not have a criminal record.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Issue 10:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends the Washington Navy Yard shooter received an Honorable discharge and committed much worse misconduct during his service than the Applicant who was discharged with a General discharge for minor offenses.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, 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.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	NJP - Nonjudicial 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	CBW - 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