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NAVY | DRB | 2009_Navy | ND0902150
Original file (ND0902150.rtf) Auto-classification: Denied

ex-GM3, USN
Current Discharge and Applicant’s Request
Application Received: 20090728
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)        20030115 - 20030915     Active:   20030916 – 20070912 HON

Period of Service Under Review:
Date of Current Enlistment: 20070913     Age at Enlistment: 24
Period of E nlistment : 3 Years Extension
Date of Discharge: 2008022 7      Highest Rank/Rate: GM2
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.71

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20080216 :       Article (Failure to obey order or regulation, engaging in unlawful discrimination and wrongfully promoting a negative command climate within the Navy through personal example to wit: Taking part in a racially deprecating party with fellow group members involving a piñata depicting an African American hanging by a noose, a cake which read “Happy MLK Day” with swastikas and skulls around it. )
         Awarded : Susp ended:

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:
         
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 0 3 091 6 UNTIL 0 7 0 912 ”

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 11 June 2008, 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 order or regulation) .



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

Applicant’s Issues

 1.        Wants U.S. Department of Veteran Affairs (VA) benefits.
2.       Record of service.
3.       Charged with a harsher discharge than originally intended.
4.       Discharge based on false statements by fellow Sailors.
Decision

Date: 20 10 0722             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 for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation). Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected to consult with a qualified counsel but waived rights to submit a written statement and request an administrative board.

: (Nondecisional) The Applicant would like to receive VA benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities , and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends that he served over four years with good conduct and had no previous disciplinary actions. D espite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. Failure to obey an order or regulation is considered a serious offense that could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) 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.

: (Decisional) ( ) . The Applicant contends that he was initially to be discharged under MILPERSMAN Article 1910-160 but was subsequently discharged under the harsher MILPERSMAN Article 1910-142. MILPERSMAN Article 1910-160, SEPARATION BY REASON OF SUPREMACIST OR EXTREMIST CONDUCT, states that “cases will normally be processed under Misconduct – Commission of a Serious Offense (MILPERSMAN 1910-142) or Best Interest of the Service (BIOTS) (MILPERSMAN 1910-164).” MILPERSMAN Article 1910-164, SEPARATION BY REASON OF BEST INTEREST OF THE SERVICE (BIOTS), states that “only Secretary of the Navy (SECNAV) can approve a best interest of the service (BIOTS) separation.” It further states that “BIOTS processing is only appropriate when the member does not meet the minimum criteria for processing for any other reason.” Violation of UCMJ Article 92 (Failure to obey order or regulation) meets the minimum criteria for a serious offense per the Manual for Courts-Martial United States, and so the Applicant’s command was justified in processing him for administrative separation under Article 1910-142, SEPARATION BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

A review of the Applicant’s separation package reveals where he may have misunderstood that he was to be initially discharged in the Best Interest of the Service. Item 1.a. lists the Reason for processing as “Best Interest of the Service.” This phrase is crossed out and replaced with a handwritten “Misconduct (Commission of a Serious Offense) . ” Item 1.j. Comments of Commanding Officer, however, states that “In accordance with MILPERSMAN 1910-142, I recommend GM3 Nathan Ronnie to be processed for Administrative Separation from Naval Service by Reason of Misconduct – Commission of a Serious Offense.” Further, the Administrative Separation Processing Notice (Administrative Board Procedure), signed by the Applicant on 19 February 2008, lists the reason for administrative separation processing as “Separation by Reason of Misconduct – Commission of a Serious Offense.” As stated in the previous paragraph, the Applicant’s command properly separated him using MILPERSMAN Article 1910-142, SEPARATION BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

4: (Decisional) ( ) . The Applicant contends that he was discharged based primarily on false statements by two other service members who were subsequently kicked out of the Navy for separate incidents in Mexico. The Applicant provided no documentation , nor was there anything in his service record, to back up this allegation.

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 T herefore, 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.

 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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