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NAVY | DRB | 2009_Navy | ND0900384
Original file (ND0900384.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20081203
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)      20050823 - 20060215     Active:  

Period of Service Under Review:
 Date of Enlistment: 20060216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071005      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 78
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :
- 20070620 :       Art icle 80 ( Attempt to coerce a DoD employee into changing official military records)
         Article 134 (Communicating a threat against a DoD employee)
          Awarded : Susp ended :

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. Reprimand the C enter for Information Dominance Detachment, Monterey .
2. Command did not follow proper protocol in the processing of his discharge.
3 . Discharge unfairly harsh.

Decision

Date: 20 0 9 0312         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

 : 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 contends the command did not follow protocol in the processing of his discharge and his discharge was unfairly harsh. 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 violations of the Uniformed Code of Military Justice (UCMJ): Article 80 (Attempt to coerce a DoD employee) and Article 134 (Communicating a threat against a DoD employee). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e 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 Applicant claims he was coerced into signing a homosexual statement, but later his command changed the reason for his discharge without telling him why it was changed. In the Applicant’s statement, he states he was sexually assaulted by a government employee and had sent threatening text messages to his assai lant which resulted in the Applicant’s NJP. In the Applicant ’s statement, he admit ted he deserved this NJP. For the edification of the Applicant, the commanding officer (CO) makes the determination, based on credible information, if the service member has committed homosexual conduct as defined in the Navy Military Personnel Manual , and does not have to inform the service member of the reason for changing the basis for involuntary separation. Since t he CO discharged the Applicant for misconduct and not for homosexual conduct, the Board relies on a presumption of regularity in the conduct of its affairs in that the CO found the Applicant did n ot warrant separation processing for homosexual conduct . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant provided a copy of a Voluntary Statement from the CIDD Monterey Master-at-Arms Chief of 21 June 2007, which states the Applicant did admit to being homosexual ; a partial copy of the U.S Department of Veterans Affairs (VA) ruling of the Applicant’s post-traumatic stress di sorder from his sexual assault; and a summary of events. The Board determined the evidence submitted by the Applicant was not sufficient to overcome the government’s presumpti on of regularity in this case . Furthermore, since the CO used the Notification Procedure to administratively separate the Applicant, the offense did not require mandatory processing and the CO believed the circumstances did not warrant an Under Than Honorable Conditions discharge. The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

The Applicant contends his discharge was inequitable because it was unfairly harsh. The Board 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. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. 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.

For the Applicant’s edification, t he 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. Docum entation 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. 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant ’ s statement o n the DD Form 293, he provided one character reference letter on his behalf. 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 charact erization of service received, Gener al (Under Honorable Conditions) , was an appropriate characterization consid ering the length of service, the UCMJ vi olations involved, and the limited post-service documentation provided ; and a n 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

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 violations of the UCMJ, Article 80 (Attempts) and Article 134 (Communicating a threat).

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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