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NAVY | DRB | 2010_Navy | ND1000528

Original file (ND1000528.rtf) Auto-classification: Denied

ex-ABH3, USN

Current Discharge and Applicant’s Request

Application Received: 20091203

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)        20030627 - 20040623     Active: 20040623 - 20081120 HON

Period of Service Under Review:
Date of Current Enlistment: 200 81121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091116      Highest Rank/Rate: ABH2
Length of Service : Y ear s M onth s 26 D a ys
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.03

Awards and Decorations ( per DD 214):      ESWS EAWS

Periods of UA /C ONF :

NJP :

- DATE NFIR :     Article , Failure to obey an order or regulation, 2 specifications.
                  Specification 1: Failed to report involvement in a motor vehicle accident.
                  Specification 2: Failed to have a “non-Alcohol” consuming liberty buddy.
                  Article , False offici al statements, l ied to local officials and Command Investigator that a junior Sailor was driving the vehicle in which he had been driving prior to an accident.
                  Article 111, Drunken operation of a vehicle, physically controlled a vehicle while drunk on 20090726.
                  Article 134, General Article, fled the scene of an accident without making his identity known.
                  Awarded: NFIR Susp ended: NFIR

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 Documentat ion:          Community Service:                References:
         Department of VA letter:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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 s 92, 107, 111, and 134.

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

Applicant’s Issues
1. The Applicant contends that hi s discharge was inequitable in comparison with other service members with similar offenses.
2 . The Applicant contends the offense was an isolated incident and was not afforded the opportunity to correct his actions.
3 . The Applicant contends h is five years of honorable service away from his family was not considered.
Decision
Date: 20110114 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 complete d 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 for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 2 specifications ; s pecification 1: Failed to report involvement in a motor vehicle accident ; s pecification 2: Failed to have a “non-Alcohol” consuming liberty buddy), Article (False official statements, lied to local officials and Command Investigator that a junior Sailor was driving the vehicle in which he had been driving prior to an accident), Article 111 (Drunken operation of a vehicle, physically controlled a vehicle while drunk on 20090726), and Article 134 (General Article, fled the scene of an accident without making his identity known). When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and to submit a written statement for consideration by the separ ating authority .

: (D ecisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his discharge was inequitable based in comparison with other service members with similar offenses. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no evidence that other service members received lesser punishments for similar offenses. Violations of Articles 92, 107, 111, and 134 of the UCM J are considered serious offenses that could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial or an administrative discharge with an Other Than Honorable characterization of service. The command did not refer the Applicant for a court-martial nor did they recommend an Other Than Honorable discharge but opted instead for the more lenient administrative General discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends the offense was an isolated incident and his five years of honorable service was not considered during the separation process. Despite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant exhibited extremely poor judgment for a Second Class Petty Officer and then lied about the details of the incident to cover up his misconduct. Both a punitive discharge and an Other Than Honorable discharge were warranted, but the NDRB believes that the Applicant’s command did take his previous service into account in recommending the lenient General discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends his five years of honorable service away from his family was not considered during the separation process. The awarding of a lenient General discharge suggests that the Applicant’s command did take into account the Applicant’s overseas service. Many Sailors serve overseas away from their families yet manage to serve honorably. Separation from family does not excuse willful misconduct. 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 (SERIOUS OFFENSE). The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge.

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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NAVY | DRB | 2010_Navy | ND1000528

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