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NAVY | DRB | 2009_Navy | ND0900545
Original file (ND0900545.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20090108
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: USNR (DEP)     20030618 - 20030624     Active: 

Period of Service Under Review:
 Date of Enlistment: 20030625      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20060228       Highest Rank/Rate: AN
Length of Service: Year(s) Month(s) 04 D ay(s)
Education Level:         AFQT: 43
Evaluation Marks:        Performance: NFIR         Behavior: NFIR   OTA: NFIR
Awards and Decorations (per DD 214):     NDSM GWOTSM NMCOSR (2) SSDR (2)
Periods of UA/CONF: SPCM: CC:

NJP:
- 20040904 :      Article 92 (Failure to obey other lawful general order)
         Awarded: Suspended:

- 20050525:      Article 92 (Failure to obey lawful written order), 2 specifications
         Awarded: Suspended:

SCM:

- 20050630 :      Article 92 (Dereliction of duty).
         Article 128 (Assault consummated by a battery)
         Sentence:

Retention Warning Counseling:

- 20040904:      For CO’s NJP held this date for violation of UCMJ Article 92, failure to obey other lawful general order
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:              


Related to Post-Service Period (cont):

Additional Statements:
From Applicant:         From Representation:     From Congress member:

Other Documentation:

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 lawful order or regulation) and Article 128 (Assault consummated by a battery).


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

Applicant’s Issues

 1. I testified against a shipmate and the prosecuting attorney recommended my discharge be upgraded.

Decision

Date: 20090402            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

 : ( ) . The Applicant is seeking an upgrade to honorable based on the fact that he provided testimony against a shipmate and the trial counsel in the case recommended his discharge be upgraded to general (under honorable conditions). The Applicant further contends he did not appeal his discharge at the time of separation because his mother was ill and shortly thereafter passed away. T he Board extends its condolences to the Applicant in the passing of his mother. In regard to the Applicant’s petition for relief, the NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and characterization of service, if such a change is warranted. 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 retention warning, two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), 2 specifications and one SCM for violations of the UCMJ: Article 92 (Dereliction of duty) and Article 128 (Assault consummated by a battery).

The Board commends the Applicant for the role he played in the successful prosecution of the case outlined in the trial counsel’s letter of 15 February 2005, but has determined these efforts were not sufficient to mitigate the misconduct committed by the Applicant or strong enough to support an upgrade. The Applicant needs to understand the recommendation by trial counsel was only a recommendation, neither the commanding officer nor any separating authority was bound by his recommendation. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the established standards of conduct expected of a U. S. Sailor. Additionally, per the commanding officer’s comments contained in the transmittal letter of 27 July 2005, the Applicant consistently disregarded directions given to him. The NDRB determined the awarded discharge characterization was appropriate and 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, 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 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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