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NAVY | DRB | 2010_Navy | ND1000808

Original file (ND1000808.rtf) Auto-classification: Denied

ex-AEAA, USN

Current Discharge and Applicant’s Request

Application Received: 20100127

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       COMMISSION OF A MINOR UC MJ INFRACTION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030107 - 2003 0811     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030 812     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050715      Highest Rank/Rate: AEAN
Length of Service : Y ear ( s ) M onth ( s ) 0 3 D a y ( s )
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):      Rifle MM Pistol FLo C

Periods of UA /C ONF :

NJP :

- 20050523 :       Article (Failure to obey order or regulation - F raternization)
         Article (Adultery)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL; FLAG LETTER OF COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON; PISTO L (MM) , RIFLE (MM) , GLOBAL WAR O N TERRORISM SERVICE MEDAL ”
         “ 03AUG12 ”
         “ 01 11 03 ”
         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MILPERSMAN 1910-142 ”
         “ 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 gener al court-martial for violation of the UCMJ : Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery) .

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

Applicant’s Issues

1 . Decisional issues: ( 1 ) (Equity) - The Applicant contends that her discharge was inequitable , because it was based on one isolated incident in 23 months of exemplary service, as such, it warrants an upgrade to an Honorable characterization of service at discharge. ( 2 ) (Equity) - The Applicant contends that the misconduct did not interfere with her perfor mance as a S ailor and she fully participated in the investigation and made no attempt to be dishonest or conceal information. ( 3 ) (Equity) - The Applicant contends that the narrative reason for separation does not accurately portray the time of good service and the offense was not serious enough to warrant being characterized as a Serious Offense, as such, she seeks a change to the narrative reason to “Commission of a minor UCMJ infraction.”

Decision

Date: 20 1 1 0331 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. T he NDRB conducted 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 at age 20 for a 4-year contract with a 12 - month extension with a guarantee of Aviation Electronic , Electrical, Computer System Technician’s program . She enlisted with a moral waiver to enlistment standards for pre-service use of illegal drugs - marijuana . Throughout h er enlistment, the Applicant received no NAVPERS 1070/613 retention-counseling warning s . The Applicant’s service record contained one nonjudicial punishment for violation of the following Article s of the Uniform Code of Military Justice (UCMJ): Article 92 ( V iolation of a lawful general order – OPNAV Instruction 5370.2a dated 27 May 199 ( Fraternization Policy ) ) and Article 134 (Adultery) . T he Applicant’s record of service includes no other nonpunitive or punitive punishments.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 23 May 2005 . 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 that the command was recommending that she receive an Under Other Than Honorable Conditions characterization of h er service at discharge. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged – in writing – that s he understood that the least favorable characterization of service at discharge that s he could receive was General (Under Honorable Conditions) . Sh e further acknowledged h er rights and elected to waive h er right to consult with qualified legal counsel and to submit a statement to the Separation Authority for consideration in h er case. On 03 June 2005 , the Command submitted its recommendation for separation to the Separation Authority , who approved the Applicant’s discharge and notified Commander , Nav y Personnel Command of the final action. T he local Separation Authority approved the separation - M isconduct – Commission of a Serious Offense - having determined that the evidence of record supported the basis for discharge and that the characterization of service, as proposed , was warranted. The Applicant received a General (Under Honorable Conditions) characterization of service at discharge and was further advised that s he was not recommended for future re-enlistment and assigned a reentry code of RE-4 .

: (Decisional) ( ) . (1) The Applicant contends that her discharge was inequitable , because it was based on one isolated incident in 23 months of exemplary service, as such, it warrants an upgrade to an Honorable characterization of service at discharge. (2) The Applicant contends that the misconduct did not interfere with her performance as a sailor and she fully participated in the investigation and made no attempt to be dishonest or conceal information. (3) The Applicant contends that the narrative reason for separation does not accurately portray the time of good service and the offense was not serious enough to warrant being characterized as a Serious Offense; as such, she seeks a change to the narrative reason for discharge to read “Commission of a minor UCMJ infraction. ”

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 . Furthermore, administrative separation for the commission of a serious military offense does not require adjudication; however, the offense must be substantiated by a preponderance of evidence. Violation of Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery) of the UCMJ warrant punitive discharge and confinement for up to 1 year, if adjudicated at trial by special or general court martial. The command completed a preliminary inquiry into the allegations of fraternization and adultery. The Applicant’s sworn statements and copies of email transmissions between the Applicant and a Commissioned Officer acknowledged and confirmed the relationship . Moreover , the Applicant’s sworn statements acknowledged that she was aware that the sexual relationship was both consensual and adulterous in nature and was furthermore in violation of the U.S. Navy Fraternization Policy.

Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the service in order to maintain good order and discipline. The Applicant’s Commanding Officer recommended separation from the service based on the serious nature of the charges and her knowingly willful disregard for naval regulations and discipline of the naval service . The preliminary inquiry and the nonjudicial punishment for violation of punitive articles of the UCMJ established the basis for separation: Misconduct – Commission of a Serious Offense.

The Applicant was provided the opportunity to present h er 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 was properly notified and accorded her rights, the separation process was properly conducted, and that the misconduct as identified, did properly satisf y the requirements established for separation based on Misconduct – Commission of a S erious O ffense. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. No r elief based on propriety .

Based on the prejudicial effect to good order and discipline of the command, the Command proposed separation with a General (Under Honorable Conditions) characterization of service at discharge. The Separation Authority reviewed the evidence of record and directed the Applicant be involuntarily separated for M isconduct – Commission of a Serious Offense and that s he be separated with a General (Under Honorable Conditions) discharge. 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 and the gravity of the misconduct and its prejudicial affect to the good order and discipline of the service, the NDRB determined that separation was warranted. Further, the NDRB determined that the quality of the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of her service record. As such, 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. Accordingly, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no 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 neither an upgrade in characterization of service nor a change in the narrative reason for separation would be appropriate and that relief is not warranted.

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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NAVY | DRB | 2010_Navy | ND1000808

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