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NAVY | DRB | 2010_Navy | ND1000474
Original file (ND1000474.rtf) Auto-classification: Denied

ex-CTT3, USN
Current Discharge and Applicant’s Request
Application Received: 20091124
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)        19990519 - 19990729     Active:   19990730 - 20021120 HON

Period of Service Under Review:
Date of Current Enlistment: 20021121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070706      Highest Rank/Rate: CTT2
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.1 ( 7 )      Behavior: 2.2 ( 7 )        OTA: 2.93

Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF :

NJP :

- 20070310 :       Article (Drunk and disorderly conduct)
         Article (Assault, biting SR finger tip off)
         Awarded : Susp ended:

S CM :    SPCM: C C :

Retention Warning Counseling :

- 20030829 :       For violation of LAN user agreement, prohibited internet activity, accessing internet website containing or related to Pornography.

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 990730 UNTIL 021120 ”
         “ GENERAL (UNDER HONORABLE CONDITIONS ”
         “ 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 of the UCMJ, Article 128 .



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

Applicant’s Issues

 1 . Decisional issues: The Applicant contends that the characterization of his service at discharge was inequitable, as it was based on an isolated incident in 92 months of service with no other adverse actions.

Decision

 Date: 2011021 7 Location: Washington D.C.        Representation:

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 identif ied one decisional issue for the NDRB’s consideration; additionally , the 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.

During the current enlistment period, the Applicant received one NAVPERS 1070/613 retention-counseling warning. The Applicant’s period of enlistment under review also included one nonjudicial punishment for violation of the following Articles of the Uniform Code of Military Justice: Article 134 ( Drunk and Disorderly Conduct ) and Article 128 ( Assault). The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 08 June 2007 . The Applicant was advised that the basis for separation was MISCONDUCT (Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) and by reason of Physical Fitness Assessment Failure in accordance with Article 1910-170 of the MILPERSMAN. The C ommand further advised the Applicant that the least favorable characterization of service he could receive a t discharge was a General ( Under Honorable Conditions) characterization. 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 was General (Under Honorable Conditions) . He further elected to consult with qualified legal counsel, but waived his right to request an administrative hearing board and to submit a statement to the Separation Authority for consideration in his case. On 22 June 2007 , the Separation Authority approved the recommendation for discharge and designated that the primary basis for separation would be MISCONDUCT (Serious Offense) – having determined that the evidence of record supported the basis for discharge and that the characterization of service recommended was warranted. On 06 July 2007, t he Applicant was discharged with a General (Under Honorable conditions) characterization of his service and was further advised that he was not recommended for reenlistment or reentry .

: (Decisional) ( ) . The Applicant contends that the characterization of his service at discharge was inequitable, as it was resultant from an isolated incident in 92 months of service with no other adverse actions . The 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. In accordance with the MILPERSMAN, service members 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 military offense. Furthermore, administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. Violation of Article 128 (Assault – consummated by a battery ) of the UCMJ warrants punitive discharge and confinement for up to six months , if adjudicated at trial by court - martial. If a determination of intent to inflict grievous bodily harm was determined to have occurred as a result of the injuries that were inflicted, the awarding of confinement may be increased to five years. The Applicant’s Commanding Officer, pursuant to a finding of Assault consummated by a battery , recommended the Applicant for separation. The Applicant’s service record formally documents a finding of guilty at nonjudicial punishment for a serious offense and is supported by civilian arrest record and a probable cause affidavit from the local law enforcement agency.

Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. 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 that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct ( commission of a serious offense ) as the primary basis for discharge. Additionally, the Applicant ’ s three documented Physical Fitness Assessment failures in a four-year period during h is current enlistment supported the secondary basis for discharge - Physical Fitness Assessment Failure. A s such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, r elief based on propriety is denied.

Based on the seriousness of the offense committed, coupled with the Applicant’s failure to maintain physical readiness standards, his prior formal counseling regarding other personal misconduct, and his previous honorable enlistment, the Command recommended separation with a General ( Under Honorable Conditions) characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be separated for MISCONDUCT (Serious Offense) and that he be separated with a General ( Under Honorable Conditions ) characterization .

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.

Based on the Applicant’s record of service, the NDRB determined the Applicant ’s service was honest and faithful, but that significant negative aspects of the member’s conduct and performance of duties as outlined in the preceding paragraphs did outweigh the positive aspects of his service record . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the applicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade is not appropriate and that relief is not warranted ; th erefore, the character of the discharge shall not change. 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 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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