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NAVY | DRB | 2010_Navy | ND1001196

Original file (ND1001196.rtf) Auto-classification: Denied

ex-GMSA, 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)        20050425 - 20051107     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090123      Highest Rank/Rate: GMSN
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.75 ( 4 )       OTA: 2.88

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20080 811 :      Article 80 (Attempts)
         Article (Larceny), 3 specifications
         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:                  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 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 80 and Article 121 .

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

Applicant’s Issues

1.       Nondecisional issues : The Applicant seeks an upgrade in the characterization of her service at discharge to Honorable in order to access Department of Veterans Affairs (VA) educational benefits.

2.       Decisional issues : The Applicant contends that her discharge characterization of service was inequitable as her misconduct was isolated and sh e has matured since discharge.

Decision

Date: 20 1 1 0609            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 N DRB 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 provided documentation of her post-service educational accomplishments as well as a personal statement regarding her support to community service non-profit organizations. The Applicant enlisted at the age of 19 in to the United States Navy with a four - year enlistment agreement with a guarantee for Torpedoman “A” school. The Applicant’s record of service contains a nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) : Article 80 (Attempts) and Article 121 (Larceny – 3 separate specifications). Based on the investigative results of a Naval Criminal Investigative Service (NCIS) investigation, the Applicant was seen at a Captain’s Mast (non-judicial punishment) for violation of Article 80 and 121. Based on a preponderance of the evidence, the Applicant was found guilty of violating the Articles of the UCMJ and was awarded administrative punishment that included a reduction in rank to E-2, a forfeiture of one half of one month ’ s pay for two months, and 45 days of extra duties. Based on the serious ness of the misconduct (larceny in excess of $500.00), the Commanding Officer processed the Applicant for an administrative separation.

The Applicant’s Commanding Officer notified the Applicant of the proposed separation on 19 September 2008. The Applicant acknowledged – in writing – her understa nd ing of the reason for separation was Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN). S he elected to consult with qualified legal counsel and further requested that she receive an administrative board hearing to determine her case. A properly constituted administrative discharge hearing board was convened on 13 November 2008; the Applicant was present and was represented by qualified military legal counsel. Based on the evidence presented to the discharge hearing board, the Board found that, by a vote of 3-0, that the Applicant had committed misconduct and that separation by reason of Misconduct due to the commission of a serious offense was supported. The Board determined that by a vote of 3 to 0, the facts and circumstances warranted separation from the Naval Service and by a vote of 3 to 0, that separation was warranted. However, the Board recommended by a vote of 3 to 0, that the Applicant receive a General (Under Honorable Conditions) characterization of her service at discharge. The Applicant and counsel did not submit any notice of deficiency regarding the conduct of the discharge hearing board.

On 27 January 2009, the Applicant’s Commanding Officer forwarded the findings of the hearing to the Separation Authority, recommending that the Board’s findings b e supported. T he Separation Authority approved the recommendation for discharge, directing that the basis for separation be MISCONDUCT (Serious Offense) – having determined that the evidence of record supported the basis for discharge – and that the characterization of service , as recommended by the chain of command and the discharge board, was warranted. On 23 January 2009 , the Applicant was discharged from the N aval S ervice with a General (Under Honorable Conditions) characterization of h er service for MISCONDUCT; the Applicant was further advised that s he was not recommended for reenlistment or reentry and was assigned an RE-4 reentry code.

(Nondecisional Issues). The Applicant seeks an upgrade in the characterization of her service at discharge to Honorable in order to access VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue s of obtaining VA educational benefits or facilitating employment opportunities . Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB c an grant relief.

( Decisional Issues ) ( ) . The Applicant contends that her discharge characterization of service was inequitable as her misconduct was isolated and she has matured since discharge. 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.

(Propriety) - Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. In accordance with Article 1910-142 of 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. The Applicant’s service record formally documents a determination of guilt for violation of Articles 80 and 1 2 1 of the UCMJ at a C aptain’s Mast held on 11 August 2008 . V iolation of these Articles warrant s a punitive discharge and confinement for up to 5 years, if adjudicated at trial by court-martial; thus, the violations meet the requirement of the MILPERSMAN for administrative separation due to Misconduct - C ommission of a S erious O ffense. 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 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 b ased on propriety is denied.

(Equity) - As indicated in the preceding paragraphs, larceny, though isolated, is a serious offense that violated the trust and confidence of her fellow service members and violated the Navy Core Values. Moreover, w hile the Applicant may contend that her youth or immaturity or depression w ere the underlying cause of h er misconduct, s he provided no documentation or explanation in support of this claim. The NDRB recognizes that many of our service members are young at the time they enlist for service , but most still manage to serve honorably. While we understand some members may be less mature than others may, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 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 NDRB determined that 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 | ND1001196

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