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NAVY | DRB | 2010_Navy | ND1001225
Original file (ND1001225.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20100414
Characterization of Service Received:
Narrative Reason for Discharge: and
Authority for Discharge: MILPERSMAN
1910-142 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020829 - 20030223     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030224     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060131      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.17 (1)

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20050927 :      Article (U nauthorized a bsence from unit)
         Article (Incapacitated for duty)
         Awarded: (to E-3) Suspended: RIR (suspend 6 months)

S CM :             SPCM:    C C :

Retention Warning Counseling :

- 20050927 :       For being found guilty at Captain’s Mast of violation of UCMJ Article 86, U nauthorized absence , and Article 134, I ncapacitated for duty. No further misconduct will be tolerated.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ GENERA L (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 general court-martial for specific violation s of the UCMJ .



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

Applicant’s Issues

 1.        Applicant seeks an upgrade to obtain veteran education benefits.
2.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 1 06 09             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 discharg e 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 identif ied one decisional issue for the Board ’s consideration . T he Board c omplete d a thorough review of the available evidence , 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 NAVPERS 1070/613 (Page 13) retention warning for being found guilty at Commanding Officer’s nonjudicial punishment (NJP) (27 Sep 2005 ) and NJP for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , from unit, specifics NFIR ) and Article 134 ( Drunkenness - incapacitation for performance of duties, o/o 21 Sep 2005 ) . Though the records are incomplete, the Board determined that the Applicant was likely dual-notified for administrative separation on the basis of Misconduct ( C ommission of a S erious O ffense) and Personality Disorder. Evidence within the record included a 12 Jan 2006 psychiatric evaluation that recommended expeditious administrative separation and undetermined offenses committed by the Applicant . The separation code of HKQ on the Applicant’s DD-214 (Block 26) indicates the Applicant waived his right to an administrative separation board while being processed for separation . The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement , and request an administrative board or a General Court- Martial Convening Authority review . The Applicant was separated from the Navy on 31 Jan 2006 with a General (Under Honorable Conditions) discharge due to Misconduct ( C ommission of a S erious O ffense) and Personality Disorder.

: (Nondecisional) Th e Applicant seeks an upgrade to obtain veteran education 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.
: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. In the Applicant’s letter to the Board, he claimed that he had an established career that i ncluded supervisory positions in power plant construction projects, he volunteered with youth programs, and he was pursuing a degree at Embry Riddle Aeronautical University. In support of his claims, the Applicant submitted documenta tion to include: three letters of reference from Embry Riddle University Staff and a letter of reference from his local Veterans of Foreign Wars chapter Commander. Although his efforts to improve his life are noteworthy, the A pplicant’s e fforts need to be more encompassing. The Applicant could have provide d documentation as detailed in the Post-Service Conduct paragraph in the Addendum . C ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis . Without any additional post-service documentary evidence and in consideration of the available evidence within the service records , the Board determined the awarded characterization of service shall remain General ( Under Honorable Conditions).

Since the Applicant’s command failed to properly annotate the primary basis for separation on the DD-214, the Board determined that Misconduct (Commission of a Serious Offense) should be the primary separation basis due to misconduct separations retaining higher precedence over Personality Disorder separations per regulations in the Naval Military Personnel Manual .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, the Board found the discharge was proper and equitable, al though administrative errors existed in the completion of the Applicant’s DD-214. Accordingly , the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) . Since the Applicant’s command failed to properly annotate the primary basis for separation on the DD-214, the NDRB determined MISCONDUCT (SERIOUS OFFENSE) to be the appropriate narrative reason as misconduct takes precedence over Personality Disorder.

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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