ex-ABFAA, USN

Current Discharge and Applicant’s Request

Application Received: 20150223
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20090115 - 20090419  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20090420	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20120807	Highest Rank/Rate:  ABFAN
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  73
Evaluation Marks:	Performance:  3.0 (4)	Behavior:  3.0 (4)	OTA:  3.09

Awards and Decorations (per DD 214):	Pistol        JMUA

Periods of CONF:  

NJP:  

- 20120511:	Article  Did at or about 0330, on or about 13 April 2012, without authority, absent himself from his unit, and did remain so absent until at or about 2030, on or about 13 April 2012.  
	Article  On or about 13 April 2012, was derelict in the performance of duty by writing the watchbill to exclude himself from watch.  
	Article  2 specifications
	Specification 1:  Did on or about 13 April 2012, with intent to deceive, make to Master-at-Arms Second Class, U.S. Navy, official statement, to wit: “I am on special liberty until 15 April 2012” and “I am in Oregon meeting my friend to get some items I left behind in San Diego,” or words to those effects, which statement were totally false and were then known by the SNM to be false. 
	Specification 2:  Did on or about 13 April 2012, with intent to deceive, make to Master-at-Arms Chief Petty Officer, U.S. Navy, official statement, to wit: “I am in Whidbey Island,” or words to those effects, which statement were totally false and were then known by the SNM to be false.
	Awarded:   Suspended:  

- 20120727:	Article  2 specifiations 
	Specification 1:  Did on or about 1 June 2012, violate a lawful order, to wit:  OPNAVINST 5350.4D, paragraph 6.c, dated 4 June 2009, by wrongfully providing alcohol to an Airman, U. S. Navy, a person under the age of 21. 
	Specification 2: Did on or about 1 June 2012, violate a lawful order, to wit:  Navy Regulations, Chapter 11, Article 1137, dated 14 September 1990, by failing to report drug use by members of the Navy Service.  
	Article  Did on or about 6 June 2010, with intent to deceive, make to Master-at-Arms First Class, U. S. Navy, an official statement, to wit:  “I only saw people over 21 years old drinking alcohol,” or words to that effect, which statement was totally false and was then known by the said to be so false.  
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20120511:	For unauthorized absence status for approximately 16 hours on 20120413. 

Administrative Corrections to the Applicant’s DD 214

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

	Block 4a, GRADE, RATE OR RANK, should read: “ABFAA”
	Block 4b, PAY GRADE, should read: “E2”
	  “03  03  19”
	  “2012 07 27”

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 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that his discharge was not warranted because he was found guilty at NJP due to rumors and no   
        physical evidence.  
2.    The Applicant contends that was a good Sailor as evident by his personal awards and evaluations.  

Decision

Date:  20150423		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) warnings, and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification), Article 92 (Failure to obey an order or regulation, 3 specifications), and Article 107 (False official statement, 3 specifications).  Based on the offense(s) 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.

:  (Decisional) ()  .  The Applicant contends that his discharge was not warranted because he was found guilty at NJP due to rumors and no physical evidence.  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 his finding of guilt at NJP was not warranted.  If the Applicant felt there was no evidence, he could have written an appeal post NJP.  Furthermore, when notified of administrative separation, the Applicant waived his right to consult with counsel, and submit a rebuttal to the separation.  If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  Except for his statement, the Applicant submitted no evidence to support his contention; therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs.  Relief denied.  

:  (Decisional) ()  .  The Applicant contends that he was a good Sailor as evident by his personal awards and evaluations.  The Applicant submitted his Good Conduct Award, a Letter of Appreciation, Letter of Commendation, and two evaluations as evidence to support his contention.  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.

The MILPERSMAN states that 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.  It goes further to state that 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.  On the Report of Administrative Separation submitted by the Applicant Commanding Officer, USS Reagan, dated 30 Jul 12, it states “As the negative aspects of his service outweigh the positive, I have separated Airman Apprentice B_________ with a General (Under Honorable Conditions) characterization of 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 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. 

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 PATTERN OF 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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