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NAVY | DRB | 2010_Navy | ND1000706

Original file (ND1000706.rtf) Auto-classification: Denied

ex-FT3, USN

Current Discharge and Applicant’s Request

Application Received: 20100112

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of ServiceBATT

Prior Service:
Inactive:         US N R (DEP)        20040624 - 20040727     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040728     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090122      Highest Rank/Rate: FT2
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 77
Evaluation M arks:         Performance: 4.3 ( 4 )      Behavior: 3.6 ( 5 )        OTA: 3.51

Awards and Decorations ( per DD 214):      Pistol NAVY-E NASR ESBI

Periods of UA /C ONF :

NJP :

- 20081006 :      Article , Assaulting a superior commissioned officer
         Article , Insubordinate conduct toward a petty officer
         Article , Assault consummated by battery
         Article , General Article
         Specification 1: Drunkenness
         Specification 2: Communicating a threat

         Awarded: Suspended:

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, 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 s 90 , 91, and 128 .

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

Applicant’s Issues

1 .       The Applicant contends his discharge was inequitable because it was based on one incident in 56 months of service with no other adverse action.
2.       The Applicant suggests his discharge was improper by his contention that the administrative board process is illusory because, in his case, the c ommander kept all the power to separate him based on factors outside the purview of the board.
3 .       The Applicant suggests his discharge was improper because the administrative review board recommended a G eneral discharge with a 12-month suspension, but it was disapproved by the Commanding Officer, Naval Submarine Support Center (NSSC) , implying he was not the separation authority.
4.       The Applicant implies his discharge was improper because the command decided the basis [for separation] required mandatory processing. However, at the conclusion of the board, the command failed to send the record to BUPERS, instead saying the board did not require mandatory processing.
5.       The Applicant contends his c ommand conducted further investigation of him , to include a pre-service drinking incident from when he was 13 years old . This information was not considered at the administrative separation board. Therefore, his discharge was improper and inequitable because he did not have an opportunity to confront all evidence used to separate him.
6.       The Applicant states his counsel submitted a letter to NAVPERS requesting review of the case and clarification of MILPERSMAN separation procedures. However, his command did not allow him to remain on active duty long enough to receive a response from NAVPERS , implying that it was required that they wait for a response before discharging him.

Decision

Date: 20 1 1 0310             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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 90 ( Assaulting a superior commissioned officer), Article 91 ( Insubordinate conduct toward a petty officer) , Article 128 (Assault consummated by battery), Article 134 ( Drunkenness), and Article 134 (Communicating a threat). His record of service did not include any NAVPERS 1070/613 (Page 13) warnings, summary courts-martial, or special courts-martial. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel and request an administrative board . He waived his right to submit a written statement.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable because it was based on one incident in 56 months of service with no other adverse action . Despite a service member’s prior record of service, certain serious offenses, even though isolated, may warrant separation from the Navy to maintain proper order and discipline. Violation of Article s 90 , 91, and 128 are considered serious offenses per the UCMJ and can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command chose not to pursue a punitive discharge or confinement but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant's discharge equitable and no more severe than the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant suggests his discharge was improper by his contention that the administrative board process is illusory because, in his case, the c ommander kept all the power to separate him based on factors outside the purview of the board. 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. The NDRB found no evidence, nor has the Applicant produced any evidence, to support his contention that an illusory board process led to him being improperly discharged. Following the Applicant’s administrative board proceedings, his counsel requested NAVPERS consider reviewing his case to address the issue of the commander keeping all the power to separate based on factors outside the purview of the board, opining that it “undermines the authority of the board . ” The NDRB determine d the Applicant’s opinion of established policy and procedure does not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) ( ) . The Applicant suggests his discharge was improper because the administrative review board recommended a G eneral discharge with a 12 - month suspension , but it was disapproved by the Commanding Officer , NSSC, implying he was not the separation authority. Pursuant to Navy regulations, if an a dministrative b oard finds the preponderance of evidence supports one or more reasons for separation and recommends suspended separation, the s eparation a uthority may approve the board ’ s findings and recommendation s for cases involving non-mandatory reasons for processing. The s eparation a uthority may also modify the administrative board ’ s recommendation s for non-mandatory reasons by disapproving the suspension of separation. Based on documentation found in the Applicant’s service record , his administrative separation board did determine his case involved non-mandatory reasons for processing and recommended the separation be suspended. Documentation found in the service record also indicated Commanding Officer, N SSC disapproved the recommendation to suspend the separation . The NDRB determined that because the administrative separation board found the case involved non-mandatory processing reasons , Commanding Officer , NSSC , not Commander, Nav y Personnel Command, was the separation authority and subsequently modified the administrative board’s recommendation by disapproving the suspension of separation , acting within his authority . The NDRB discerned no impropriety in the Applicant’s discharge based on this issue. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant implies his discharge was improper because the command decided the basis [for separation] required mandatory processing. The Applicant also contends that at the conclusion of the board, the command failed to send the record to BUPERS, instead saying the board did not require mandatory processing. Documentation found in the Applicant’s service record clearly indicates the administrative separation board found the preponderance of evidence did not support mandatory processing. The NDRB determined that Commanding Officer, NSSC’s decision to take responsibility of s eparation authority was appropriate as it was based on the board’s finding of non-mandatory reasons. The NDRB concluded the Commanding Officer, NSSC acted well within his authority as separation authority and discerned no impropriety in the Applicant’s discharge based on this issue . Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends his command conducted further investigation of him, to include a pre-service drinking incident from when he was 13 years old. The Applicant also contends that t his information was not considered at the administrative separation board and, t herefore, his discharge was improper and inequitable because he did not have an opportunity to confront all evidence used to separate him. 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 the contention that the command conducted an investigation after the board was completed and that he did not have an opportunity to confront all evidence used to separate him. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant states his counsel submitted a letter to NAVPERS requesting review of the case and clarification of separation procedures , but his command did not allow him to remain on active duty long enough to receive a response from NAVPERS , implying that it was required for his command to wait for a response before discharging him . There is no regulation or policy that requires the command to wait for a response from NAVPERS before discharging him. The Commanding Officer, NSSC, was the separation authority and properly and equitably discharged the Applicant. The NDRB discerned no impropriety based on this issue. Relief denied.

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 GENERAL (UNDER HONORABLE CONDITIONS) 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 for additional information.

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 | ND1000706

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