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NAVY | DRB | 2010_Navy | ND1000210
Original file (ND1000210.rtf) Auto-classification: Denied

ex-IS1, USN
Current Discharge and Applicant’s Request
Application Received: 20091028
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)        19911030 - 19921020     Active:            19921021 - 19961107

Period of Service Under Review:
Date of Current Enlistment: 19961108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010622      Highest Rank/Rate: IS1
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 3.5 ( 6 )        OTA: 3.40

Awards and Decorations ( per DD 214):      Rifle (2) (2) ESW S ; EAW S

NJP : S CM : S PCM: C C :

Retention Warnings:
- 20001019 :       For performance, personal behavior , and responsibilities.
- 20001026 :       For performance, personal behavior , and responsibilities.

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 921021 UNTIL 961107 ”

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:           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 :        


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

Applicant’s Issues

 1. The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.
 2 . The Applicant contends his discharge is inequitable , because it was based on an isolated incident.
 3. The Applicant contends his discharge is inequitable , because board members had the same reporting senior.
 4 . The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date : 2011010 6 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 Board did complete a thorough review of the circumstances that l ed to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning s, both for performance, personal behavior , and responsibilities , which resulted in him being relieved as a Section Leader and a Class Leader . The Applicant was charged with various violations of the Uniform Code of Military Justice (UCMJ) . It was recommended by the Investigati ng Officer , who conducted a preliminary investigation, to dispose of the charges at Captain’s Mast , because he thought there was not enough physical evidence to convict the Applicant at a Court-Martial. The Applicant refused NJP. Therefore, b ased on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an A dministrative Separation Board (ASB) and General Court-Martial Convening Authority (GCMCA) review. The Applicant appeared before the ASB o n 2 May 2001. The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the findings for violation of UCMJ Article 107 ( False official statement ) and Article 13 2 ( Frauds against the US Government) and the notification for separation, which was misconduct due to commission of a serious offense. Additionally, the ASB recommended , by a 2-1 vote, that the Applicant be separated from the Navy , but by a 3-0 vote should receive a General (Under Honorable Conditions) discharge and recommended that he be transferred to the IRR. The command and separating authority approved the ASB’s recommendations , and t he GCMCA conducted a review and determined that the Applicant was afforded a ll rights . The Applicant was subsequently discharged with a General (Under Honorable Conditions) characterization of service.

: (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces. 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 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 was based on an isolated incident that could not be proven via court-martial. A servicemember may be separated based on the commission of a serious offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. Per Appendix 12 of the Manual for Courts-Martial, v iolation of Article 107 (False official statement) and Article 132 (Frauds against the US Government) are considered serious offenses , which are punishable by a punitive discharge if convicted at a Special or General Court-Martial. The command initially chose to dispose the charges against the Applicant at a NJP , but he refused. Th e command could then have refer red the case to a court-martial, dismiss ed the case altogether , or process ed the Applicant for an administrative separation. The command chose the latter, which required a n ASB. As described in the above paragraph, the ASB recommended separating the Applicant with a General (Under Honorable Conditions) after determining that the preponderance of the evidence supported violation of Articles 107 and 132 . The NDRB determined that the command ’ s action s were proper and warranted. Relief denied.

 : (Decisional) ( ) . The Applicant contends his discharge is inequitable , because board members had the same reporting senior. The NDRB is not an investigative body and is unable to verify the chain of command structure that the ASB members were a part of. However, it is not uncommon for ASBs to be staffed by members of the same command . The NDRB presumes that the members of the ASB conducted themselves impartially and rendered their decision based on facts in the case, without any influence from the command. In the letter of deficiency to the command, the Applicant’s counsel did not mention the impartiality of the ASB as an issue . Additionally, a review by the separating authority and GCMCA did not reveal any question with the ASB’s impartiality. The NDRB determined that this issue is without merit. Relief denied.

4: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. Although the Applicant provided documentation showing he completed two degrees and is gainfully employed, he failed to provide any additional documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the Post-Service Conduct paragraph in the Addendum with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received was an appropriate characterization. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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, Reenlistment/RE-code and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 25 January 2001 until 21 August 2002,
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 Statement ) .


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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