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NAVY | DRB | 2009_Navy | ND0900839
Original file (ND0900839.rtf) Auto-classification: Denied

ex-OS2, USN
Current Discharge and Applicant’s Request
Application Received: 20090226
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive:        USNR (DEP)       19990629 - 19990808     Active:           19990809 - 20030314
                                    USN      20030315 - 20060810 HON
Period of Service Under Review:
 Date of Enlistment: 20060811      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20070309       Highest Rank/Rate: OS1
Length of Service: Year(s) Month(s) 29 D ay(s)
Education Level:         AFQT: 74
Evaluation Marks:        Performance: 3.5 ( 2 )     Behavior: 2.5 ( 2 )        OTA: 2.93

Awards and Decorations (per DD 214):     Rifle Pistol (3) (3) (2) NEM (2) (2) ESWS EAWS
Periods of UA/CONF: NFIR

 NJP:

- 20070301 :      Article 107 (F alse official statements)
         Article 115 ( Malingering)
         Article 134 (NFIR)
         Awarded: Suspended:

SCM: SPCM: CC: 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 Representation:     From Congress member:

Other Documentation:



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

Applicant’s Issues

 1. Change reentry (RE) code.
2. Record of service.

Decision

Date: 2009 0528             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (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 he served honorably for eight years with no adverse action, and he “did not commit any crimes or injure anyone.” 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 Uniform Code of Military Justice (UCMJ): Article 107 (False official statements); Article 115 (Malingering); and Article 134 (Specific reason not found in record). These are considered serious offenses 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 Board commends the Applicant for completing his first two enlistment periods honorably, but each period of enlistment is an independent obligation and characterization is determined for that specific period of time. It was during the last enlistment the Applicant was referred to NJP. The Applicant stated his girlfriend sent a “vicious” letter to the Judge Advocate General’s Corps (JAG) office in San Diego which ultimately led to his discharge. For the edification of the Applicant, m embers may be separated based on commission of a serious military or civilian offense when specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge per Manual for Courts-Martial, Appendix 12 for the same or closely related offense. Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, offense must be substantiated by a preponderance of evidence (e.g., copy of police record, Naval Criminal Investigative Service (NCIS) investigation, etc.). The record of evidence does not contain any information regarding his NJP and the Applicant did not provide any documentation to support why “this whole incident should have been considered nonsense and disregarded…” The NDRB determined the awarded discharge characterization was appropriate since t he Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

When the Administrative Board Procedure is used to separate an individual the least favorable characterization they can receive is Under Other Than Honorable Conditions. The separation code, HKQ, is assigned when the Administrative Board Procedure is used to separate a member for commission of a serious offense and the member waives his right for a board. If the Applicant felt he needed to provide further explanation of the circumstances, it was his obligation to contest those charges at the time they were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him. The Applicant submitted no evidence to support his contention; therefore the NDRB must rely upon the presumption of regularity in the conduct of government affairs. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

 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; 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 DD Form 293, he provided only in-service and no post-service documentation. 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. Should the Applicant feel his post-service conduct becomes substantial enough to warrant 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


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 107 (False official statements), Article 115 (Malingering), and Article 134 (NFIR).

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 NDRB 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 NDRB 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 NDRB 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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