ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20141017
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	Reentry Code change to:  

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20001129 - 20010424  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20010425	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20021024	Highest Rank/Rate:  SA
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  48
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  3.0 (1)	OTA:  3.17

Awards and Decorations (per DD 214):	  

Periods of UA/CONF:  

NJP:  

- 20020929:	Article  (Failure to obey order or regulation)
	Article 112 (Drunk on duty)
	Article  (General article)
	Awarded:     Suspended:   

SCM:  	SPCM:  		CC:  	Retention Warning Counseling:  

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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)(b), Presumption Concerning Court-Martial Specifications.

C.  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, 112, 134.  

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 in order to join the Naval Reserves.
2.	The Applicant contends his discharge characterization determination may have improperly considered misconduct he was previously punished for in an NJP during his discharge processing.
3.	The Applicant seeks an upgrade due to the repeal of the “Don’t Ask, Don’t Tell” policy.
4.	The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date:  20150129		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code 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   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article 112 (Drunk on duty), and Article 134 (General article) and a hand written letter to his commanding officer asking to be discharged from the Navy because he was a homosexual.  Due to the Applicant’s admission of a homosexuality, which the commanding officer found to be credible, the Applicant was processed for administrative separation.  Following the Applicant’s admission, he committed misconduct that was addressed at nonjudicial punishment.  When notified of administrative separation processing using the  procedure, the Applicant was notified of separation for both his homosexual admission and the commission of a serious offense as evidenced by his finding of guilt at his nonjudicial punishment.  He was advised that the least favorable characterization of service warranted at discharge was Under Other Than Honorable Conditions.  The Applicant acknowledged his understanding of the notification of separation proceedings and his rights therein; he waived his rights to consult with a qualified legal defense counsel, to request an administrative hearing board be convened to hear his case, and to submit a written statement to the Separation Authority for consideration.

:  (Nondecisional) The Applicant seeks a change in his RE-code in order to join the Naval Reserves.  In accordance with the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, service review boards should normally grant requests to change the reentry code to an immediately-eligible-to-reenter category if the discharge and corresponding reentry code was: (1) based solely on DADT or a similar policy in place prior to enactment of DADT; and (2), there were no aggravating factors in the record, such as misconduct.  As authorized by the Assistant Secretary of the Navy (Manpower & Reserve Affairs), the NDRB may change reentry codes as set forth in the USD (P&R) memorandum dated 20 September 2011.  The USD (P&R) policy memorandum stated that, if applicable, the new RE code should be RE-1J, however, this is an Air Force specific re-entry code.  In accordance with the guidance and intent of the policy memorandum, the applicable U.S. Navy reentry code would be RE-1 (eligible for reenlistment).  The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Admission and the Commission of a Serious Offense while in service.  The Applicant’s service record documents unacceptable misconduct (the introduction of alcohol to a naval vessel, drunk on duty and altering an identification card).  The NDRB determined that the record of service, coupled with the record of misconduct, would not warrant a recommendation for retention had the Applicant not been involuntarily separated for his Homosexual Admission.  As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that the Applicant’s reentry code shall remain RE-4.

Due to the Applicant’s documented misconduct discharge 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 for a discharge related to misconduct.  Only the BCNR can make changes to reenlistment codes issued under these circumstances.  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 characterization determination may have improperly considered misconduct he was previously punished for in an NJP during his discharge processing.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  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.  The Applicant’s service record clearly shows he provided his commanding officer a hand written letter asking to be separated from the Navy due to his homosexuality on 15 August 2002.  The record next shows one NJP for offenses committed on or about 30 August 2002 for the introduction of alcohol to a naval vessel, drunk on duty and altering an identification card.  On 8 October 2002 he was notified of administrative separation processing using the  procedure for both his homosexual admission and the commission of a serious offense as evidenced by his finding of guilt at his nonjudicial punishment. Furthermore, the record of the Applicant’s NJP clearly shows he was awarded reduction in rank to E1 which was suspended for six months.  However, the Applicant’s DD Form 214 indicates he was subsequently reduced in rank prior to discharge presumably for additional misconduct not contained within the record and which presumably occurred after his separation notification.

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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not fully aware of all of the reasons for his administrative separation to include his misconduct.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Based on the evidence of record the NDRB, by a vote of 5-0, determined the quality of the Applicant’s service was honest and faithful.  However, significant negative aspects of the member’s conduct or performance of duty as documented in the nonjudicial punishment outweighed the positive aspects of the member’s service record.  As such, it is appropriate to characterize the service as General (Under Honorable Conditions).  Relief denied.

:  (Decisional) ()  .  The Applicant seeks an upgrade due to the repeal of the “Don’t Ask, Don’t Tell” policy.  The record of evidence clearly shows that while the Applicant was notified of separation for his homosexual admission, he was also notified for his commission of a serious offense.  Department of Defense regulations provide that disciplinary separations supersede administrative separations.  Furthermore, the Applicant’s homosexual admission does not mitigate the misconduct he committed after revealing his sexual orientation.  In accordance with the MILPERSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his post-service conduct is worthy of an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.

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), 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