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NAVY | DRB | 2010_Navy | ND1000173
Original file (ND1000173.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20091020
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)        20050211 - 20050801     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050802     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080506      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 2.99
Awards and Decorations ( per DD 214):      ISAFM ACM

Periods of UA /C ONF :

NJP :
- 20080412 :      Article (Reckless endangerment)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20070205 :       For making offensive comments of a sexual nature in the work center.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 134 .


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

Applicant’s Issues

 1.        Nondecisional issues : Applicant requests a change in his re-enlistment code in order to re-enlist in the Marine Corps and to have his rank restored.

2.       Decisional issues: (Propreity/Equity) Applicant contends that his punishment at NJP was unjust and overly harsh while others received less severe punishment for the same infraction. This unjust and overly harsh punishment led to his being separated unfairly.
Decision

Date : 20 10 1209    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 discharge, if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no documentation for mitigation in this specific case nor did he provide any documentation to rebut the NDRB’s presumption of regularity in governmental affairs.

The Applicant identified one decisional issue to the Board relating to the propriety and equity relating to the basis of his discharge. The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one 6105 retention-counseling warning and one for o f the Uniform Code of Military Justice (UCMJ). The NJP w as for violation of Article 134 ( General Article; specifically - Reckless Endangerment ). Additionally, the Applicant’s service record reflects three unit deployments to Afghanistan in support of Operation ENDURING FREEDOM.

Violation of Article 134 as specified in the Applicant ’ s record of NJP is considered a serious offense that 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 a non-judicial punishment. Based on the offense committed by the Applicant, the command further recommended the more lenient administrative separation from the service. The NDRB reviewed the Applicant’s administrative separation package to determine if the Applicant was afforded his rights during the separation process. When notified of the recommendation for administrative separation using the notification procedure, the Applicant elected to waive right to consult with a qualified counsel, to submit a written statement, or to exercise his right to request an administrative discharge board hearing .

The Applicant provided no additional documentation beyond his personal statement for consideration by the Board.

: (Nondecisional) . The Applicant requests a change in his re-enlistment code in order to re-enlist in the Marine Corps and seeks to have his rank restored. The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and 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. Reenlistment policy of the Nav y is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054 . A n unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter. Furthermore, the NDRB has no authority to restore or change the rate/rank of an Applicant ; t he Applicant must petition the BCNR to seek this form of relief.


: (Decisional) ( ) . The Applicant contends that his punishment at NJP was unjust and overly harsh while others received less severe punishment for the same infraction; moreover, this isolated incident with an unjust and overly harsh punishment unjustly formed the basis for his separation . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order . Based upon the Applicant’s service record , nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy . While other service members may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer consider s matters for extenuation and mitigation unique to each individual and each specific case before him . Therefore , no two cases, no matter how similar, are guaranteed to receive the same punishment. In this specific case, the Applicant ’ s willful and deliberate misconduct led to the injury of a fellow sailor while forward deployed in a combat zone.

The Applicant contends that his discharge was based on one isolated incident in what was otherwise an honorable period of service . Despite a service member’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. A n administrative discharge is not punishment , it is a determination of retention in the military service ; t he decision to discharge a service member administratively is made independently of , and does not require , adjudication at court-martial or nonjudicial punishment. The Applicant’s service was marred by his violation of Article 134 of the UCMJ , which constitutes the “Misconduct - C ommission of a S erious O ffense , ” the discharge basis in this case. This specific violation of the UCMJ is punishable by a Bad Conduct D ischarge and up to 1 year of imprisonment , if adjudicated by a c ourt- m artial ; instead, the command opted for the more lenient NJP and administrative separation process .

 The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as honorable. characterization at 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 Applicant’s conduct, which forms the primary basis for determining the character of service, reflect s the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , especially one of his grade and length of service , and f ell short of what is required for an upgrade in the characterization of service. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that a General ( Under Honorable Conditions ) characterization of service at discharge was warranted . The NDRB determined the discharge was proper and equitable and that an upgrade would be inappropriate ; accordingly, by a majority vote, the Applicant ’ s request for relief is 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 GENERAL (UNDER HONORABLE CONDITIONS) 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. A personal appearance hearing i n this case may be warranted if 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. The Applicant is directed to the Addendum, specifically the paragraphs en titled Additional 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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