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NAVY | DRB | 2008_Navy | ND0801222
Original file (ND0801222.rtf) Auto-classification: Denied

ex-HT1, USN
Current Discharge and Applicant’s Request
Application Received: 20080515
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19920917 - 19920927                 Active:            19920928 - 19980730
                                                                                 19980731 - 20000525
                                                                                 20000526 - 20020224

Period of Service Under Review:
Date of Enlistment: 20020225     Period of E nlistment : Years Extension         Date of Discharge: 20070502
Length of Service : Y ear s M onth s 08 D a ys Education Level:   Age at Enlistment:     AFQT: 54
Highest Rank /Rate : HT1   Evaluation M arks: Performance: 4.3 ( 7 )   Behavior: 3.1 ( 7 )        OTA: 3.71
Awards and Decorations ( per DD 214): (4) (4) (4) (5) (3) ESWS

Periods of UA /C ONF :

NJPs :

S CMs :
20070227 : Art icle 86 (Unauthorized absence)
Article 128 ( Assault) , 2 specifications
Sentence : RESTR

SPCMs:  

C C :
20070205 : Offense: Stipulation and order for diversion entered. [Extracted from Commanding Officer's letter dated
20070404].
Sentence : NFIR.

Retention Warnings:

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19920928 UNTIL 20020224 ”

The NDRB will recommend to the C ommander, 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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Other Documentation (Describe) :
                  - E-mail with a Pacific Daily News article
                  - Newspaper article

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 128 , Assault consummated by a battery .




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

Applicant’s Issues

 1. Discharge improper because adverse matters from prior enlistments were used in the discharge proceedings.
2. Isolated incident.
3. Legal advisor was not an attorney.             

Decision

Date : 20 08 0925    Location: Washington D.C .       R epresentation :

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

 : ( ) . The Applicant contend s his discharge was improper and should be upgraded to “H onorable ” because adverse matters from prior enlistments were used to characterize his service. Additionally, the Applicant states this was an isolated incident and the legal advisor was not an attorney. The Applicant forwarded in-service records to the Board in support of his request. 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 service was marred by one civilian conviction of 5 February 2007 (Stipulation and order for diversion entered) and one summary court-martial conviction of 27 February 2007 for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (U A ) and Article 128 ( Assault) , 2 specifications . Based on a review of available records in the file and presented by the Applican t , the Board acknowledged there was sufficient evidence to support separation based on misconduct due to the commission of a serious offense. T here was no evidence found in the record, or provided by the Applicant to support his contention of improper discharge based on consideration of adverse matters from prior enlistments .

An “H onorable ” 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 discharge “U nder O ther T han H onorable C onditions ” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Applicant’s mis conduct and summary court-martial reflect a significant departure from conduct expected of members of the naval service and the award of an “Under Other Than Honorable Conditions” discharge was appropriate. The Bo a rd determined an upgrade would be inappropriate.

Issue 2: (Equity) RELIEF NOT WARRANTED. In response to the Applicant’s concern this was an isolated incident within 48 months o   f otherwise impeccable service the Applicant should be aware that d espite a service member’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. Additionally, an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of and does not require adjudication at a court-martial or non-judicial punishment. Violations of both Article 86 and Article 128 are considered serious in nature and could have resulted in a punitive discharge and confinement with adjudicated and awarded as part of a sentence from a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

Additionally, the Board noted the Applicant’s statement concerning his impeccable service contradicts the Applicant’s other concern his command considered a dverse matters from his prior enlistment when determin ing his characterization of service. He states he had an otherwise impeccable service record; if the record were impeccable the Board questions how he has adverse matters from his previous enlistments available for the command to review? Th is minor discrepancy notwithstanding , the Applicant needs to understand the command acted within its legal rights and under proper authority to discharge him based on the charges at hand, as isolated as they were. The Board determined an upgrade would be inappropriate.


Issue 3: (Propriety ) RELIEF NOT WARRANTED. In response to the Applicant’s concern that his administrative separation board was not properly constituted, the Board acknowledges that MILSPERMAN 1900-010 requires a Legal Advisor, if detailed, to be either a civilian or military lawyer certified in accordance with Article 27 (b) of the UCMJ. A Legal Advisor was appointed to the Applicant’s Board as noted by the Commanding Officer’s Request for Separation letter of 4 April 2007. While this letter does not identify the Legal Advisor, facts in evidence indicate that it was a senior Petty Officer (E-9). Based on this evidence, it appears that an impropriety did occur since the detailed legal advisor did not meet the qualification requirement set forth in MILPERMAN 1900-010. However, the Board determined this impropriety was not prejudicicial to the Applicant since it is highly unlikely that a different result would have ensued in his case had the Legal Advisor possessed the requisite qualifications. The evidence before the Administrative Separation Board clearly documented the Applicant’s misconduct and supported the characterization and reason for discharge awarded. Also noted was the Applicant’s and his Counsel’s lack of objection to the Detailed Legal Advisor’s qualifications during the proceedings. That acquiescence undermines their after-the-fact contention of prejudicial error. The Board determined an upgrade 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


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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