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NAVY | DRB | 2009_Navy | ND0900101
Original file (ND0900101.rtf) Auto-classification: Denied

ex-FCSN, USN
Current Discharge and Applicant’s Request
Application Received: 20081015
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)      20010320 - 20010327     Active:  

Period of Service Under Review:
Date of Enlistment: 20010328     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050630      Highest Rank/Rate: FC3
Length of Service : Y ear s M onth s 03 D a ys
Education Level:        AFQT: 71
Evaluation M arks: Performance: NFIR Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20050506 : Art icle 92 ( Failure to obey order or regulation ) , 3 specifications
Awarded : Susp ended : Appealed: 20050518 Appeal denied: 20050606

S CM : SPCM: C C : 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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :



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

Applicant’s Issues

 1. OTH is disproportionate to the offense committed.
2. First and only offense.
 3 . No formal training on hazing.
4. Post- service conduct .

Decision

Date: 20 0 9 0205             Location: Washington D.C .        R epresentation :

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

 Issue s 1 : ( Equity ) . The Applicant contends the discharge received is disproportionate to the offense committed and t he Applicant has requested an upgrade to an “Honorable” 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. The Applicant’s record of service was marred by one NJP for violation s of the U niform C ode of M ilitary J ustice (UCMJ): Article 92 (Failure to obey order or regulation —two specifications for hazing and one specification for not reporting hazing ) . Th i s is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. The awarding of an “Under Other Than Honorable Conditions” discharge for a violation of Article 92 is within established Navy policy and the Board did not this disproportionate to the offense committed. The Applicant failed to provide any documentation or evidence to demonstrate how the awarded discharge was disproportionate to his offenses. As a result, the Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

Issue 2: (Equity) RELIEF NOT WARRANTED. The Applicant states this was an isolated incident and he had a spotless record as noted by being awarded a Good Conduct Medal. The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service in order to maintain proper order and discipline. The Board noted the Applicant did not go to CAPT’s mast, but rather to Admiral’s mast on 6 May 2005 for these offenses. While the Applicant may feel the singularity of the incident offsets the offense, it is clear the Applicant’s hazing of his fellow shipmates was so egregious in nature it warranted Admiral’s mast . The Board determined the Applicant’s claim of an isolated incident, while it may be accurate, is insufficient grounds for an upgrade to “Honorable”. The awarded discharge characterization was appropria t e and an upgrade would be inappropriate.

Issue 3: (Equity) RELIEF NOT WARRANTED . The Applicant contends he had no formal training in hazing and therefore his discharge should be upgraded. Hazing is contrary to the Navy’s core values of Honor, Courage and Commitment, and is not tolerated in today’s modern naval s ervices. The negative consequences of hazing are such that a t the time of the hazing violations, SECNAVINST 1610.2 of 01 OCT 97 (DoN Policy on Hazing) had been in effect for over seven years . The NDRB recognizes there is a range of activities defined as hazing, and reasoned the hazing the Applicant performed on his fellow shipmates to be egregious in nature ; so much so it warranted Admiral’s mast as referenced above. As a Petty Officer Third Class at the time of the violations, the Applicant should have known hazing was not part of the Navy’s core values. The Board rejects the Applicant’s claim he did not have for mal training on hazing as being without merit and insufficient to warrant an upgrade .

Issue 4 : ( ) . The Applicant contends his post service conduct warrants an upgrade. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable 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. Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending or completion of higher education (official transcripts); and documentation of a drug- free lifestyle. Each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

T he Board applauds the Applicant for taking accountability for his actions, maintaining a steady job, and for continuing his education (and doing well). However, t o warrant an upgrade the Applicant’s post-service efforts need to be more encompassing . The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved a nd based on the limited post-service documentation provided an upgrade would be inappropriate.
The Applicant remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of discharge. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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

The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge under other than honorable conditions 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 NDRB finds the original characterization to be appropriate.
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 92 , Failure to obey or regulation .


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 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 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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