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NAVY | DRB | 2010_Navy | ND1001374
Original file (ND1001374.rtf) Auto-classification: Denied

ex-ABEAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100421
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630605 [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)        19861231 - 19870602     Active:            1987060 3 - 19910529 HON
         USNR-R   19910530 - 19921129 HON            ANG      199211XX - 19951129 HON
         USNR (DEP)        19951222 - 19960319

Period of Service Under Review:
Date of Current Enlistment: 19960320     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970430      Highest Rank/Rate: ABEAN
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 26
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.78

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 19970429 :      Article (UA 19970414-19980428, 15 days)
         Article (Willfully disobey a lawful command)
         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:

         “ MILPERSMAN 3630605 ”

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 14, effective 3 October 1996 until 12 December 1997, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 90 – Willfully disobeying the lawful order of a superior commissioned officer .



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 his service at discharge and a corresponding change to his reenlistment code in order to be eligible for reenlistment.

2.       Decisional issues : (Propriety) The Applicant contends that he was discharged wrongfully as he was not in an unauthorized absence status or in violation of a lawful order; as such, his discharge was wrongful, not warranted, and merits correction.

Decision

Date: 20 1 1 0324            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 provided documentation in support of his contentions to include copies of his request for hardship transfer or discharge with endorsements from the chain of command as well as copies of NAVPERS P601-6R forms regarding his unauthorized absence status for the NDRB’s consideration during the record review.

The Applicant’s record of service reflects an initial entry into the military , with waiver for enlistment standards due to pre-service drug use (marijuana use, one time), at the age of 17. The Applicant completed his initial tour of active duty and was honorably discharged to the Navy Reserve . While in the Navy Reserve, the Applicant transferred to the Army National Guard in which he completed a 3-year tour of duty with an honorable discharge. The Applicant re-enlisted in the Navy as an Aviation Boatswains Mate (E-3) and reported for duty at Naval Station Great Lakes for outfitting and further assignment.

During the current enlistment period, the Applicant received no NAVPERS 1070/613 retention-counseling warning s . The Applicant’s period of enlistment under review included one nonjudicial punishment for violation of the following a rticles of the Uniform Code of Military Justice: Article 86 ( Unauthorized Absence ) and Article 90 ( Willful disobedience of a lawful order from a commissioned officer ).

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 29 April 1997 . The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with Article 3630605 of the Naval Military Personnel Manual (MILPERSMAN). The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was a General (Under Honorable Conditions) characterization of his service. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged - in writing - that he understood that the least favorable characterization of service at discharge was General (Under Honorable Conditions). He was advised that he had the right to consult with qualified legal counsel, however , his signed election of rights did not indicate whether he opted to exercise that right or to waive it. Additionally, he elected to waive his right to request an administrative hearing board , to submit a statement to the Separation Authority for consideration in his case , and to request a General Court Martial Convening Authority Review . On 30 April 1997 , having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted, the Separation Authority approved the discharge action and designated that the basis for separation as MISCONDUCT (Commission of a Serious Offense). On 30 April 1997 , the Applicant was discharged with a General (Under Honorable C onditions) characterization of his service and was further advised that he was not recommended for reenlistment or reentry.


: Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge and a corresponding change to his reenlistment code in order to be eligible for reenlistment. The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code. Furthermore, a request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. The Applicant may petition the BCNR using standard DD Form-149. When requesting a change, the Applicant should provide as much documentation regarding his reason for change as possible. The BCNR’s address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

 : (Decisional) ( ) . The Applicant contends that he was discharged wrongfully as he was not in an unauthorized absence status or in violation of a lawful order; as such, his discharge was wrongful, not warranted, and merits correction. 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 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. Violation of Article 90 ( Willfully disobeying the lawful order of a superior commissioned officer ) of the UCMJ warrants punitive discharge and confinement for up to five years , if adjudicated at trial by court martial. The Applicant’s service record formally documents a finding of guilty at nonjudicial punishment for a serious offense. The Applicant’s Commanding Officer, pursuant to a finding of violation of Article 90 of the UCMJ , directed that the Applicant be separated .

The Applicant was discharged due to a single period of unauthorized absence and a corresponding violation of a lawful order by a superior commissioned officer regarding that period of absence . However, official records included copies of NAVPERS P601-6R form s - submitted by the command - directing corrections to the service record of the Applicant, stating that he was reported in an unauthorized absence status in error . These documents further acknowledg e that t he Applicant was in an official TAD status due to his humanitarian support status. Based on the unique issues of this individual case and the documentation in the official service record, the NDRB determined that the local command authority improperly discharged the Applicant . Furthermore, since the basis for separation was improper , the NDRB determined that the narrative reason for separation , as reflected on the Applicant’s form DD-214 - MISCONDUCT (Commission of a Serious Offense) - is no longer proper or warranted . Since there is no other narrative reason for separation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority . As such, relief is warranted .

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. Given the documented evidence that the Applicant was not in an unauthorized absence status, the Applicant’s record contains no misconduct or proficiency issues . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an inequity in the characterization of the A pplicant’s service at discharge. The NDRB determined that t he Applicant’s record of service, coupled with two previous active duty honorable discharges and an honorable discharge from the U.S. Navy Reserve, was honest and faithful and did meet the standard of acceptable conduct and performance for naval personnel . The NDRB’s vote was unanimous that an upgrade is appropriate and that relief is warranted; therefore, the character of the discharge shall change to Honorable . Relief , as requested, is awarded .

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 change to .


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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