Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000812

Original file (ND1000812.rtf) Auto-classification: Denied

ex-SKSR, USN

Current Discharge and Applicant’s Request

Application Received: 20100202

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)        20010522 - 20010530     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010531     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040928      Highest Rank/Rate: SKSN
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):

Periods of UA :

Periods of Confinement : 20040120-200406 0 9 (Pre-trial confinement - 1 4 1 days ), 20040609-20040619 (Confinement - 10 days)

NJP :

G CM : 20040609 Art icle 81 (Conspiracy to consummate a battery)
         Article 128 (Assault , consummated by a battery)
         Sentence : BCD , C onfinement - 10 months , f orfeiture of all pay / allowance s, Reduction in Rank to E-1. Pre-trial agreement : Punitive discharge will be suspended for a period of twelve months from the date the convening authority acts on the sentence, at which time, unless sooner vacated , will be remitted without further action. Confinement and restraint may be approved , as adjudged ; any confinement in excess of six months will be suspended for a period of twelve months from the date the convening authority acts on the sentence, at which time, unless sooner vacated, it will be remit ted without further action.

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:                  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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 81 (Conspiracy) and Article 128 (Assault).

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

Applicant’s Issues

1 . Decisional issue : (Equity) The Applicant seeks an upgrade in the characterization of his service at discharge, contending that the misconduct was an isolated incident - not repeated - in what was an otherwise honorable period of ser vice.

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. The Applicant identified 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.

The Applicant’s record of service reflects entry into the military without any waivers to enlistment standards. He enlisted at age 19 as an E-1 with a four-year contract under the Seafarer to Airman Apprenticeship Program. The Applicant’s service record reflects completion of two years and ten months of service; he was separated involuntarily due to Misconduct (Commission of a Serious Offense) as defined in Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN).

During his enlistment period, the Applicant was subject to a General Court Martial in which he was convicted of violating the Uniform Code of Military Justice. The Applicant was found guilty of violating Article 81 (Conspiracy) and Article 128 (Assault, consummated by a battery) . The Applicant was adjudged a sentence that included a Bad Conduct Discharge, confinement for 10 months, forfeiture of all pay and allowances, and an automatic reduction in rank to E-1. The Applicant had a pre-trial agreement in place in which the Command agreed to suspend any punitive discharge adjudged for a period of twelve months from the date the convening authority acts on the sentence, and, at which time, unless sooner vacated, would be remitted without any further action. Additionally, the agreement allowed for confinement and restraint to be adjudged; however, any confinement in excess of six months would be suspended for a period of twelve months from the date the convening authority acts on the sentence, at which time, unless sooner vacated, it will be remitted without further action.

In accordance with the pre-tri a l agreement, the Bad Conduct Discharge was suspended and remitted without action and the A pplicant was notified - in writing - of the Commanding Officer’s recommendation for administrative separation on 21 July 2004 . The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with Article 1910-142 of the MILPERSMAN. The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was an Under Other Than Honorable Conditions characterization of his service. He further elected to waive his right to consult with qualified legal counsel , to present his issues before an administrative discharge board , or to submit written matters for the Separation Authorit y’s consideration .

On 20 September 2004 , Commander, Nav y Personnel Command (Separation Authority) directed that the Applicant be separated for MISCONDUCT (Commission of a Serious Offense) – having agreed that the evidence of record supported the factual basis for discharge and that the characterization of service, as recommended, was warranted. On 28 September 2004 , the Applicant was disch arged with an Under Other Than Honorable Conditions characterization of his service and was further advised that he was not recommended for reenlistment or reentry in the Navy .

: (Decisional) ( ) . The Applicant seeks an upgrade in the characterization of his service at discharge, contending that the misconduct was an isolated incident - not since repeated - in what was an otherwise honorable period of service.

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 M ILPERSMAN , 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. Violation of Article 1 28 (A ssault, consummated by a battery ) of the UCMJ warrants punitive discharge and confinement for up to 6 months , if adjudicated at trial by S pecial or G eneral C ourt Ma rtial , therefore , meeting the requirement for consideration as a serious offense for separation matters. The Applicant’s Commanding Officer, pursuant to the pre-tri a l agreement, withheld the adjudged punitive Bad Conduct discharge , instead, recommend ing that the Applicant be separated administratively pursuant to a determination that the Applicant had committed misconduct as evidenced in the General Court Martial ’s determination of guilt.

Based on a review of the evidence and the 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 basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied.

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. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the command. The Applicant was afforded the opportunity to seek legal counsel and presented his case before a properly convened General Court Martial. Based on the seriousness of the offense committed, the General Court Martial adjudged confinement, reduction in rank to E-1, and a punitive Bad Conduct discharge. The Command provided clemency by removing the Bad Conduct Discharge and limiting confinement to 6 months via a pre-tr i al agreement with the Applicant. The Applicant waived his right to a discharge hearing board when notified of the administrative separation. The Separation Authority reviewed the evidence of record and the gravity of the charges and concurred with the Commanding Officer’s recommendation for separation with a characterization of service a t discharge of Under Other Than Honorable Conditions .

Based on the Applicant’s record of service and the serious nature of the charges the Applicant was found guilty of committing, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. 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; therefore, 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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NAVY | DRB | 2010_Navy | ND1000812

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