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NAVY | DRB | 2010_Navy | ND1000405
Original file (ND1000405.rtf) Auto-classification: Denied

ex-MASN, USN
Current Discharge and Applicant’s Request
Application Received: 20091117
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)        20020531 - 20021111     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021112     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060908      Highest Rank/Rate: MA3
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.7 ( 4 )        OTA: 3.14

Awards and Decorations ( per DD 214):      Pistol NMCOSR

Periods of UA /C ONF :

NJP :

- 20040429 :       Article (Disrespect toward a Superior Commissioned Officer)
         Article (Provoking speeches and gestures)
         Article 128 (Assault)
         Article 134 (Disorderly conduct, drunkenness)
         Awarded : Susp ended:

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

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until 14 May 2008, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION FAILURE.

C . 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 .

D . 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, 128.



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

Applicant’s Issues

 1 .       Decisional issue : (Equity) The Applicant contends that his characterization of service at discharge was inequitable; the mistakes he made , which led to his discharge , were the result of his youthful immaturity and not indicative of his overall characterization of service. As such, A pplicant seeks an upgrade in his characterization of service at discharge to a General (Under Honorable Conditions) discharge or an Honorable discharge.

Decision

Date: 20 1 1 0201             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 NDRB 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 introduced one decisional issue for consideration by the NDRB. T he NDRB 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 reflects entry into the military without any waiver requirement for enlistment eligibility.
Throughout his enlistment, the Applicant did not receiv e any NAVPERS 1070/613 retention-counseling warning s. The Applicant’s period of enlistment under review included one nonjudicial punishment on 29 April 2004 for violation of the Uniform Code of Military Justice, as follow s :

•         Article 89 (Disrespect toward a Superior Commissioned Officer)
•         Article 117 ( Provoking speech and gestures )
•         Article 128 ( Assault )
•         Article 134 ( Disorderly conduct - drunkenness ) .

In April 2005, the Applicant was apprehended by military authorities for alleged spousal abuse with related alcohol abuse.
A Family Advocacy Program (FAP) Case Review Committee (CRC) formal hearing was held as a result of the allegations of s pousal physical abuse. The determination of the CRC was that spousal physical abuse did occur , and the Applicant was directed to mandatory family advocacy training and a referral to t he Naval Medical Center, Portsmouth Substance Abuse Rehabilitation Program (SARP) for evaluation . The Applicant ’s substance abuse evaluation resulted in assignment to the SARP IMPACT treatment program that the Applicant successfully completed on 24 August 2005 . F ollowing completion of the IMPACT training, the Applicant was assigned to a unit aftercare treatment program.

In May 2006, military authorities again apprehended the Applicant for suspected spousal abuse and related issues of alcohol abuse. O n 01 Aug 2006, the Applicant was subject to a FAP CRC formal hearing regarding the alcohol incident and result ing physical spousal abuse. Based on all available information, the CRC determined that the allegation against the Applicant was substantiated for physical abuse of his spouse. The CRC board recommended the C ommand pursue administrative separation and/or disciplinary action against the Applicant due to the repeated incident s of physical abuse.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 16 Aug 2006. The Applicant was advised that the basis for separation was M isconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) and Alcohol Rehabilitation Failure per Article 1910-152 of the MILPERSMAN. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged – in writing – that he understood that the least favorable characterization of service at discharge that he could receive was Under Other Than Honorable Conditions. He further acknowledged his rights and elected to waive his right to consult with qualified legal counsel, to request an administrative hearing board, and to submit a statement to the Separation Authority for consideration in his case . On 23 Aug 2006, the Command submitted its recommendation for separation with a recommendation that the Applicant receive an Under Other Than Honorable Conditions characterization of service. On 24 Aug 2006, the Separation Authority approved the recommendation for separation and further directed that the primary basis for separation be M isconduct (Commission of a Serious Offense), that the Applicant receive an Under Other Than Honorable Conditions characterization of his service at discharge, and that he not be recommended for future re-enlistment.

: (Decisional) ( ) . The Applicant contends that his characterization of service at discharge was inequitable; the mistakes he made, which led to his discharge, were the result of his youthful immaturity and not indicative of his overall characterization of service. As such, A pplicant seeks an upgrade in his characterization of service at discharge to a General (Under Honorable Conditions) discharge or an Honorable discharge.

In accordance with the MILPERSMAN, service m embers may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court - martial for the same or closely related offense. Furthermore, administrative separation for the commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence.

Despite a servicemember’s prior record of service , certain serious offenses warrant separation from the Navy to maintain proper order and discipline. The Applicant was recommended for separation by his Commanding Officer pursuant to a finding of substantiated, repetitive physical abuse of his spouse. A Case Review Committee reviewed all the available information in making its determination of substantiated physical spousal abuse; this determination meets the requirement for a finding based on the preponderance of the evidence. Substantiated physical abuse, if charged under Article 128 o f the UCMJ would warrant a punitive discharge and confinement, if adjudicated at trial by court - martial , for the same or closely related offense. The Applicant was provided the opportunity to present his case before an administrative discharge board, but waived that right, thus accepting the discharge recommended in the letter of notification. Based on a review of the evidence and circumstances unique to this case, the NDRB determined there was sufficient evidence to support the primary basis for discharge due to the commission of a serious offense and the secondary basis of alcohol rehabilitation failure.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. T he NDRB found the characterization of the Applicant's discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the A pplicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted . T herefore, the character of the discharge and the reason for discharge shall not change.

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 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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