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NAVY | DRB | 2009_Navy | ND0901944
Original file (ND0901944.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090701
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)        20030829 - 20030923     Active:            20030924 - 20080521

Period of Service Under Review:
Date of Current Enlistment: 20080522     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090313      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.00

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (3) ESWSI EAWSI

Periods of C ONF :

NJP :

- 20080926 :      Article (UA , 1530-1700, 20080825)
         Article 112 (Drunk on duty)
         Awarded: Suspended:


- 20090309 :      Article (UA ), 2 specifications
         Specification 1: 0715, 20090302-1135, 20090303 (1 day )
         Specification 2: 0740, 20090306-0700, 20090309 (3 days)
         Article (D isrespect toward a superior commissioned officer)
         Article 92 (Failure to obey order or regulation)
          Awarded : Susp ended:
S CM :

SPCM:

ARREST :

- 20090228 :       Charges : Simple domestic assault
         Sentence : No further information found in service record.

CC: NFIR



Retention Warning Counseling :

- 20080926 :       For unauthorized absence and drunk on duty.

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY & MARINE CORPS ACHIEVEMENT MEDAL (2); NAVY “E” RIBBON (3); NATIONAL DEFENSE SERVICE MEDAL; GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2); GOOD CONDUCT MEDAL; NAVY RIFLE MARKSMANSHIP RIBBON; NAVY PISTOL MARKMANSHIP RIBBON; ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA; ENLISTED AVIATION WARFARE SPECIALIST INSIGNIA ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030924 UNTIL 080521

The NDRB will recommend to the Commander, 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 /To Representat ion :            From /To Congress m ember :         

Oth er 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 89, 92 and 112 .



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

Applicant’s Issues

 1.        Seeking employment and to finish college.
2.       No basis for discharge.
Decision

Date: 20 10 0225             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absences (UAs) – 3 specifications ), Article 89 ( Disrespect toward a superior commissioned officer), A rticle 92 (Failure to obey a lawful order or regulation ), and Article 112 ( Drunk on duty) ; and one arrest for simple domestic assault. Based on the offense(s) committed by the Applicant and his failure to comply with the alcohol rehabilitation program requirements , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review.

: (Nondecisional) The Applicant contends that he is unable to obtain employment, benefits, medical, or the Montgomery GI Bill due to his characterization of service for a serious offense and is saddened that he cannot continue his career in the Navy. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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. Additionally, t he 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. In regard to the Applicant’s desire to reenlist, 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 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.
: (Decisional) ( ) . In seeking an upgrade in the characterization of servi ce the Applicant contends that at the time of discharge an assault charge w as pending against him in the civilian court and that hi s command did not wait until he was arraigned but discharged him without a true case . The Applicant also submitted documentation indicating the following:1) a warrant of arrest was executed for the Applicant in Virginia Beach Juvenile and Domestic Relations District Court in the Commonwealth of Virginia on or about 28 February 2009 for assault and battery on a female who cohabited with the Applicant, 2) a hearing was scheduled for 11 March 2009 in the Commonwealth of Virginia based on the assault on a family member , and 3) on 16 April 2009 the charge was di smissed with prejudice. Additionally, the Applicant submitted a personal statement indicating the following: 1) in late August 2008 he made a terrible mistake involving alcohol on his job, was punished and attended a 30 day substance abuse rehabilitation program, 2) on 27 February 2009 he had an altercation with his live-in girlfriend at their home, she reported the scuffle to the police and he wrote a false report indicating that t he Applicant had been at a bar all day and was intoxicated, and 4) the Applicant was taken to N J P and discharged from the service. Commission of a serious offense (COSO) does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the evidence of record as previously discussed which indicates that there was sufficient evidence to support a separation based on a pattern of misconduct, alcohol rehabilitation failure and the COSO . T he evidence of record reflects that at the time of notification of discharge the Applicant had an assault charge pending in the civilian court. Add itionally, t he Applicant had committed several serious offenses in violation of Articles 89, 92, and 112 for which he could have received a punitive discharge if found guilty of committing any of t hese offenses at a court-martial . It is of no consequence that the assault charge was subsequently dismissed by the civilian court since the command was not required to delay or postpone the administrative discharge processing pending the outcome of his civilian case when there was sufficient evidence to substantiate the discharge based on other miscon duct committed by the Applicant . The Board determined that based on the frequency and seriousness of the offenses committed by the Applicant, his age, length of service and the lack of mitigating evidence an upgrade is not warranted.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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.

 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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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