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NAVY | DRB | 2008_Navy | ND0801045
Original file (ND0801045.rtf) Auto-classification: Denied

ex-DSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080403
Characterization of Service Received:
Narrative Reason for Discharge: COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19890909 - 19900812              Active:

Period of Service Under Review:
 Date of Enlistment: 19900813      Period of E nlistment : Years Extension          Date of Discharge: 19930527
Length of Service : Yrs Mths 15 D ys      Education Level:         Age at Enlistment: AFQT: 80 Highest Rank /Rate : DC3        Evaluation M arks: Performance: 3.3 ( 2 )     Behavior: 3.5 ( 2 )          OTA: 3.40
Awards and Decorations ( per DD 214): NDSM

NJPs :    
19930107 : Art icle 121 (Steal military property, of a value of more than $100.00).
Awarded - . Susp - Appealed 19930113 Appealed denied 19930122 .

Types of Documents Submitted/reviewed

 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Employment opportunities.
2. Record of service apart from single incident of misconduct.
3 . Inequitable treatment at Captain’s Mast.
4. Excessive punishment at Captain’s Mast.
 5 . Inadequate legal counsel at Captain’s Mast.
6. Commanding Officer ignored recommendations for lesser punishment.
 7. Applicant was misled by another about nature of activities which resulted in misconduct.
8 . Post-service record.

Decision

Date: 2008082 9             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall (COMMISSION OF A SERIOUS OFFENSE) .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning regarding .

: ( ) . The Applicant contends his discharge should be upgraded based on his record of service , which was good apart from a single period of misconduct. For the edification of the Applicant, d espite a sailor’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. An “Under Other Than Honorable C onditions ” 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 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. The Applicant’s record of service was marred by a non-judicial punishment for a violation of the U niform C ode of M ilitary J ustice, Article 121. Violations of Article 121 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The Board determined an upgrade would be inappropriate based on the larceny of military property .
Issues 3-6 : ( ) . The Applicant contends he received inequitable treatment and excessive punishment at Captain’ s Mast and asks the Board to compare his case with other NJP cases in the same time frame. The NBRD consid ers each case on its own merits and does not have the jurisdiction to evaluate a c ommand’s record of non-judicial punishments. Furthermore, the Board notes the Applicant unsuccessfully appealed the punishment awarded at Captain’s Mast . Based on the statements submitted by the Applicant with his DD - 293 application, he underst ood his discharge was part of the punishment awarded at Captain’s Mast. For the information of the Applicant, the punishment awarded at Captain’s Mast did not include his discharge. The discharge process was a separate matter initiated subsequent to the Captain’s Mast , using the results of the Mast as the basis for the discharge . The record of evidence shows the Applicant was granted an administrative separation board , which was held 27 April 1993. The report of the board show s the A pplicant, represented by qualified counsel, was recommended for discharge with “Under Other Than Honorable C onditions ” characterization of service by a vote of 3-0.

The Applicant also states he was not afforded adequate counsel. As discussed above, the Applicant was provided qualified counsel during his administrative separation board and discharge process . The Applicant also stated he was able to meet with a lawyer prior to NJP, but that he was not able to have that lawyer represent him or be present during the actual NJP. For the information of the Applicant, a sailor is not entitled to representation by a lawyer during NJP.


Finally, t he Applicant contends the Commanding Officer ignored the recommendations of other representative s , including the ship’s Executive Officer , in awarding punishment. As discussed above, the Applicant unsuccessfully appealed the punishment awarded at NJP and the Administrative Separations Board recommended separation of the Applicant by a vote of 3-0. The Commanding Officer may have ask ed for and receive d recommendations from many sourc es, but the final decision rested sol el y with him. The NDRB did not discern any impropriety or inequitable treatment of the Applicant by the Commanding Officer , nor did the Board discern the Applicant received inadequate legal counsel. The Board determined an upgrade would be inappropriate.
Issue 7 : ( ) . The Applicant appears to contend he was misled by a fellow sailor about the nature of the activities which lead to his misconduct. The record of evidence indicates the Applicant did not admit to definite knowledge the material he helped remove from a Government building at 0100 hours was government property, but he “had a hunch” that it was. According to the Applicant’ s voluntary statement on 24 October 1992, hi s role in the larceny was to watch to see if anybody was coming. While he may feel his uncertainty of the legality of his actions was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions because of his uncertainty or being misled by his fellow sailor . The Board determined an upgrade would be inappropriate.
Issue 8 : ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides a discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 . Supporting documentation that could have been submitted for consideration by the Board include, but is not limited to: evidence of a drug-free existence; specific documentation of educational pursuits; certification of non-involvement with civil authorities ; and documentation of financial stability or evidence of good standing with financial institutions or credit card company’s . The Applicant should be aware 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 mitigates the reason for the characterization of discharge. The Board determined an upgrade based on the limited post service documentation provided would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 Jul y 1994, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 121 .


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, provi ded 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 grante d 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.
Employmen t / 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 or is referred to a court martial 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 other medical related reasons. 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 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 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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