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NAVY | DRB | 2009_Navy | ND0901981
Original file (ND0901981.rtf) Auto-classification: Denied

ex-Ensign, USN
Current Discharge and Applicant’s Request
Application Received: 20090625
Characterization of Service Received:
Narrative Reason for Discharge: (OTHER)
Authority for Discharge: SECNAVINST 1920.6C

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

Summary of Service

 Prior Service:
 Inactive: USNR (DEP)      19981109 - 19990701     Active:           19990702 - 20020717
                                    2002071 8 - 20050512

Period of Service Under Review:
 Date of Appointment : 20050513     Age:
Years Contracted : Indefinite
Date of Discharge: 20070401       Highest Rank : ENSIGN
Length of Service: Year(s) Month(s) 20 D ay(s)
Education Level:         AFQT: 68
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      (2) (2) (2) FLoC (2) EAWS

Periods of UA /C ONF :

NJP :
- 20060622 :      Article (False official statement)
         Article (General Artic le - 2 specifications : Fraternization and i ndecent acts with another Sailor )
         Awarded: (WRITING) Suspended:


S CM : SPCM: C C : Retention Warning Counseling:


Administrative Corrections to the Applicant’s DD 214

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

         “ 05 MAY 13 ”
          “ 01 10 20 ”
         Block 12d Total Prior Active Service, should read: “ 05 10 11 ”
          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until PRESENT establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.
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 statement) and Article 134 ( Fraternization ).



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

Applicant’s Issues

 1. The Applicant seeks to reenlist into the Navy Reserves.       
2. The Applicant believes his discharge is inequitable because it based on an isolated incident in 94 months of faithful service.
3. The Applicant believes his post-service is worthy of consideration.   
Decision

Date: 20 10 0617 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (OTHER).

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 discharge 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 eviden ce submitted by the Applicant. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propri ety. The Applicant’s record of service included a for o f the Uniform Code of Military Justice (UCMJ): Article 107 (False offici al statement: gave a statement with intent to deceive, regarding an incident that occurred on a liberty bus between himself and an enlisted female Sailor) , Article 134 (Fraternization with an enlisted female Sailor on a liberty bus) and Article 134 ( Indecent acts with an enlisted female Sailor by touching each other’s genitalia on the liberty bus). Based on the offenses committed by the Applicant, command recommended that he be detached for cause and be required to show cause for retention into the Naval Service, which he in fact appeared before a Board of Inquiry (BOI). The BOI voted unanimously (3-0) that the Applicant failed to demonstrate acceptable qualities of leadership required of an officer of his grade and failed to conform to prescribed standards of military deportment. The BOI additionally recommended by a unanimous vote (3-0) that he not be retained in the Naval Service a nd his characterization of servi ce should be Under Other Than Honorable Conditions. The command properly discharged the Applicant per the BOI’ s recommendation.

: (Nondecisional) The Applicant seeks to reenlist into the Navy Reserves. 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) ( ) . The Applicant contends his discharge is inequitable because it is based on an isolated incident in 94 months of faithful service. Despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An “Under Other Than Honorable Conditions” discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The NDRB determined that the Applicant’s misconduct was not in keeping with the high stan dards of a Navy Officer and that the discharge was warranted. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant believes his post-service is worthy of consideration by the NDRB. The Applicant provided some character references and other documentation to show he is actively involved in Habitat for Humanity and other organizations as documentary evidence on his behalf . However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing. Besides the Applicant's statement on the DD For m 293, he failed to provide sufficient documentation and evidence on his behalf to support a post-service conduct review. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

The Applicant should provide documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; evidence of an alcohol/drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings if applicable); certification of non-involvement with civil authorities , evidence of financial stability (home ownership/home rental history, credit card payments records; credit scores); college transcripts; documentation of community /church service ; a nd if married, a marriage certificate. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. W ithout sufficient documentary evidence, the NDRB cannot form a basis of relief The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and th e UCMJ violations involved. Relief denied.
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 (OTHER) . 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 Additio nal Reviews, Reenlistment/RE-code 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.

 Service Benefits: 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.
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 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 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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