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NAVY | DRB | 2010_Navy | ND1000466
Original file (ND1000466.rtf) Auto-classification: Denied

ex-ENFA, USN
Current Discharge and Applicant’s Request
Application Received: 20091130
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)        20030226 - 20031124     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031125     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070111      Highest Rank/Rate: EN3
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 64
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.73

Awards and Decorations ( per DD 214):     

Periods of C ONF : 20060914-20061102

NJP :
- 20060907 :      Article (Failure to obey an order or regulation)
         Awarded: Suspended:

- 20061102 :      Article 110 (Hazarding a vessel)
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling :
- 20060907 :       For violation of UCMJ Article 92

Administrative Corrections to the Applicant’s DD 214

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

Block 15a , Member Contributed To Post-Vietnam Era Veteran’s Educational Assistance Program, should read: “YES ”
         “ MISCONDUCT (SERIOUS OFFENSE) ”
        
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 :        

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 s of the UCMJ, Article 92 and Article 110 .


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
2.        The Applicant seeks an upgrade for educational opportunities.
 3.       The Applicant seeks to recover the $1,200 he contributed to the GI Bill or to be given access to the GI Bill.
4 .       The Applicant contends his discharge is inequitable , because it was based on an isolated incident , he was never convicted of committing a serious offense, and he never signed a written statement admitting that he committed a serious offense.
Decision

Date: 20110217 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 led 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 and for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey an order or regulation) and Article 110 (Hazarding a vessel). Based on the offenses committed by the Applicant, command administratively processed for separation. On 7 November 2006, the Applicant was notified that he was being discharged from the service for Misconduct – Pattern of Misconduct and Misconduct – Commission of a Serious Offense. The pattern of misconduct came from having a Page 13 counseling and two NJPs, and the serious offenses were violation of Articles 92 and 110. When notified of administrative separation processing using the procedure, the Applicant waived rights to c onsult with a qualified counsel and to submit a written statement for consideration by the separating authority . The Applicant was not entitled to an administrative board . The separating authority directed that the Applicant be discharged with a General (Under Honorable Conditions) for Commission of a Serious Offense.

Issues 1-3: (Nondecisional) The Applicant seeks a change in his RE-code and an upgrade for educational opportunities and wants to recover the $1,200 he contributed to the GI Bill or to be given access to the GI Bill. 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. Also, 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. Finally, the NDRB has no authority to reimburse money. This is an issue that should be presented to the Board for Correction of Naval Records (http://www.donhq.navy.mil/bcnr/bcnr.htm).

Issue 4 : (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident , he was never convicted of committing a serious offense, and he never signed a written statement admitting that he committed a serious offense . Despite a Sailor’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. Violation of Articles 92 and 110 are both considered serious offenses per the Manual for Courts-Martial United States and can result in a punitive discharge (i.e., Bad Conduct) and confinement if convicted at a Special or General Court-Martial. The Applicant’s command chose to adjudicate the charges at NJP (Captain’s Mast) and ultimately chose the more lenient administrative discharge process.

 The Applicant contends that he did not commit the act of misconduct that resulted in his discharge. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his claim of innocence. The Applicant’s statements alone do not overcome the government’s presumption of

regularity in this case. The Applicant made a confession and was taken to NJP for the incident. The NDRB cannot determine if the confession was coerced or not. To be found guilty of a violation of the UCMJ at NJP does not require a signed confession, nor is a court-martial required to find someone guilty of a serious offense. At NJP, the commanding officer can find a service member guilty based upon the preponderance of evidence. At the Applicant’s second NJP, his commanding officer found him guilty and ordered a reduction in rank. Subsequent to the NJP, he also ordered that the Applicant be administratively separated from the Navy. The Applicant is quite fortunate that he only received a General discharge. Most serious-offense cases result in an Under Other Than Honorable Conditions discharge. Furthermore, the reduction in rank from E-4 to E-2 is the result of a vacated suspension of reduction in rank from the first NJP and an additional reduction in rank from the second NJP. 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-cod , Employment/Educational Opportunities 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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