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NAVY | DRB | 2007_Navy | ND0700948
Original file (ND0700948.rtf) Auto-classification: Denied

ex-OC3, USN
Current Discharge and Applicant’s Request
Application Received: 20070703
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN 1910-142

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19970905 - 19980628              Active:          19980629 - 20020814
                                                                                          20020815 - 20050105
Period of Service Under Review:
 Date of Enlistment: 20050106      Period of enlistment : Years Months     Date of Discharge: 20060802
Length of Service: Yrs Mths 27 D ys     Education Level:         Age at Enlistment:       AFQT: 42 /71
Highest Rank/Rate: OC2    Evaluation marks: Performance: N/A        Behavior: N/A     OTA: N/A
Awards and Decorations (per DD 214): (3) (2) ESWS EAWS

Periods of UA/Confinement:

NJPs:   
         20060227 : Art(s) 132 (8 specs) Frauds against the U.S. Govt. Awarded - .       Susp - .

SCMs:   

SPCMs:  

Retention Warnings:

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:   Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education/Training:     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Performance evaluations indicate he was an outstanding Sailor
2. One isolated incident in 8 yrs of service
3. CO unfair, and punishment too harsh in light of punishment given to others for worst offenses
4. Administrative separation board recommended unanimously to retain him
5. Clinically depressed at the time
6. Post service

Decision

Date: 2008 0124             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .
Discussion

Issue (s) 1, 2, and 3 ( ). Applicant contends that he was an outstanding Sailor who had an isolated incident of misconduct that resulted in unfair punishment by his commanding officer. Pursuant to MILPERSMAN 1910-302, the characterization of service shall be determined according to standards of acceptable personal conduct and performance of duty during the member’s current enlistment. There are circumstances where the conduct reflected by a single incident may form the basis of separation. The record reflects that the Applicant went to non-judicial punishment for VUCMJ, Art. 132, and was awarded punishment for forging an officer’s signature on Tuition Assistance Applications on at least four separate occasions and presenting them for approval of approximately $6, 000 in tuition assistance. Violation of the UCMJ , Art . 132 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The Applicant’s conduct, which form ed the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. In regard to the allegations that the commanding officer‘s punishment was unfair and too harsh, the applicant has not presented any evidence nor does the r ecords contain evidence which 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 serious offense, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted .

Issue 4 ( ). Applicant contends that that his discharge should be upgraded because the administrative board unanimously recommended that he be retained, but his commanding officer challenged the board’s decision and forwarded it to Tennessee for action. Pursuant to MILPERSMAN 1910-702, if an administrative board finds the member committed the reason for processing and recommends retention, but the convening authority recommends separation, the case is to be forwarded to NAVPERSCOM for possible forwarding to SECNAV for final action. In the Applicant’s case, an administrative board found that he committed misconduct due to the commission of a serious offense and voted unanimously to retain him. The commanding officer did not agree with the board’s recommendation. Therefore, he acted in compliance with MILPERSMAN 1910-702, by forwarded the case to NAVPERSCOM, recommending separation under other than honorable conditions.
Issue 5 ( ) . The Applicant contends that his misconduct in the Navy can be attributed to his " clinical depression." While he may feel that his mental state influenced his actions , 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.

Issue 6 (Equity). The Applicant also contends that he has spent his post service time helping others. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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 several letters of recommendation and proof of employ ment as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided . Examples of documentation that could be provided to the Board include proof of educational pursuits, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

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 132 .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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