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NAVY | DRB | 2010_Navy | ND1001250
Original file (ND1001250.rtf) Auto-classification: Denied

ex-CM2, USN
Current Discharge and Applicant’s Request
Application Received: 20100420
Characterization of Service Received:
Narrative Reason for Discharge: NON RETENTION ON ACTIVE DUTY
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20010912 - 20010923     Active:   20010924 - 20050921

Period of Service Under Review:
Date of Current Enlistment: 20050922     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090930      Highest Rank/Rate: CM2
Length of Service : Y ear ( s ) M onth ( s ) 9 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.8 ( 6 )      Behavior: 3.0 ( 6 )        OTA: 3.38

Awards and Decorations ( per DD 214):      I C M (2) ESWS SCWS

Periods of UA /C ONF :

NJP :

- 20090202 :      Article (Failure to obey order or regulation) , 20090214
         Awarded: Suspended: (suspend 6 months)

S CM :    SPCM:

C C :

- 20090508 :       Offense: Assault with a deadly weapon , 20090228
         Sentence : 3 yrs pr obation, 90 days community serv ice , 4 th amendment waiver imposed , and fined $800.00

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: “ NAVY AND MARINE CORPS ACH I E VEMENT MEDAL(2), IRAQI CAMPAIGN MEDAL, NAVY “E” RIBBON, AR M ED FORCES EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON(2), ENLISTED SURFACE WARFARE SPECIALIST, SEABEE COMBAT WARFARE SPECIALIST ”

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).
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 .



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

Applicant’s Issues

 1.        Applicant seeks an upgrade to obtain GI Bill benefits.
2.       Applicant contends his discharge was inequitable as he was not kicked out of the Navy and he had no NJPs on his record.
3.       Applicant contends his discharge was inequitable , because he was suffering from a service-connected disability and hardship at the time of discharge.
Decision

Date: 20 1 1 06 16             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall NON RETENTION ON ACTIVE DUTY .

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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of 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 did not include any NAVPERS 1070/613 (Page 13) retention warnings but did reflect one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 14 Feb 2009, specifics NFIR) and one civilian conviction (assault with a deadly weapon, 28 Feb 2009, specifics NFIR). Based on the offens es committed by the Applicant, his command could have processed him for administrative separation due to misconduct (civilian conviction) or misconduct (serious offense). However, his command opted instead to allow him to reach the end of his obligated service and apply for reenlistment . On or about his expected date of reenlistment, the Applicant was informed that he was ineligible to reenlist (likely via Commander, Navy Personnel Command decision). Nine days later, on 3 0 Sep 2009, the Applicant was separated from the Navy with a General (Under Honorable Conditions) discharge. The separation code of JGH on his DD-214 indicates the Applicant was not eligible for reenlistment due to not meeting minimum enlis tment eligibility requirements.

The Applicant submitted documentation to the NDRB of evidence that the original CA Superior Court decision
(dated 8 May 2009) , which convicted the Applicant of assault with a deadly weapon, was set aside and dismissed on 7 Jun 2011.

: (Nondecisional) The Applicant seeks an upgrade to obtain GI Bill benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable as he was not kicked out of the Navy and he had no NJPs on his record. As previously explained, the Applicant’s command opted not to separate him for the 2 Feb 2009 NJP (UCMJ Article 92 offense, commission of a serious offense) or the 8 May 2009 c ivilian c onviction (Assault with a deadly weapon) , which are separable offenses per the Naval Military Personnel Manual (MILPERSMAN) . Instead , he was allowed to reach the e xpiration of his active obligated service (EAOS) . Section 1910-104 of the MILPERSMAN states that a n EAOS separation warrants an Honorable discharge unless a General (Under Honorable Conditions) is warranted based on the member’s overall trait average (OTA) under the enlisted performance evaluation system. Accordingly, the Board found that relief was warranted based on the Applicant’s performance record evaluation report average of 3.38 (OTA).




: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he was suffering from a service-connected disability and hardship at the time of discharge. After a detailed examination of the Applicant’s service records, the Board found no evidence to support the Applicant’s contention that he had been diagnosed or treated for any service-connected disability. Moreover, there was no evidence in the record, nor did the Applicant provide any evidence to indicate he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Navy is challenging. However, all members of the Naval Service s are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. After careful consideration, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief d enied.

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 Applicant’s discharge upon completion of required active service was proper, but not equitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain NON RETENTION ON ACTIVE DUTY .

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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