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NAVY | DRB | 2010_Navy | ND1001506

Original file (ND1001506.rtf) Auto-classification: Denied

ex-MASN, USN

Current Discharge and Applicant’s Request

Application Received: 20100603

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)        20021127 - 20030811     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030812     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051101      Highest Rank/Rate: MASN
Length of Service : Y ear s M onth s 20 D a ys
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 3.17

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP : NONE        S CM : NONE       SPCM:    C C :      Retention Warning Counseling : NONE

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 violation of the UCMJ, Article 91 (Insubordinate conduct toward a petty officer ) and Article 128 (Assault).

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

Applicant’s Issues

1. Applicant contends his discharge was improper/inequitable due to alleged impropriety by his command and legal counsel when being advised of his rights.
Decision
Date: 20 1 1 09 08 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 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 . The 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, commanding officer nonjudicial punishment, or trial by courts-martial. The record did reflect that on 12 Aug 2005, after results of a Criminal Investigation Division investigation dated 5 May 2005, the Applicant was charge d with violation of Uniform Code of Military Justice (UCMJ) Article 91 ( Insubordinate conduct toward a petty officer) and Article 128 (Assault consummated by battery, 10 Apr 2005, while relieving a Third Class Petty Officer from watch the Applicant grabbed him around the neck and choked him ) . On 22 Aug 2005, the charges were referred for trial by S pecial C ourt- M artial. On 14 Sep 2005, the Applicant, after consult with qualified counsel, submitted a request to the Commanding Officer of Naval Support Activity Bahrain for an administrative separation in lieu of trial by S pecial C ourt- M artial (SILT). In the request, the Applicant, in exchange for pleading guilty to the offenses in which he was charged (Article s 91 and 128), offered to accept administrative separation with a characterization of service no less than Under Other Than Honorable Conditions, thereby avoiding a possible felony conviction and punitive discharge by Special Court-Martial. The command accepted the Applicant’s request , but for unknown reasons notified the Applicant of pending administrative separation. When notified of administrative separation processing using the procedure on 14 Sep 2005 , the Applicant elected to exercise right to consult with a qualified counsel and submit a written statement, but waived his right to request an administrative separation board . On 21 Sep 2005, the Applicant’s command submitted a request to the Commander, Navy Personnel Command for administrative separation of the Applicant with the Administrative Separation Notification and Separation in Lieu of Trial packages as enclosures. On 11 Oct 2005, Personnel Command d irected that the Applicant be s eparated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was subsequently discharged on 1 Nov 2005.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable due to alleged impropriety by his command and legal counsel when being advised of his rights. The NDRB conducted a detailed examination of the Applicant’s service records to determine whether his discharge and the discharge process met the pertinent standards of equity and propriety. The records clearly reflect that on 14 Sep 2005 , the Applicant admitted his guilt (violation of UCMJ Articles 91 and 128) and requested a SILT to avoid a possible felony conviction and up to one year of confinement via a S pecial C ourt- M artial. The records also clearly reflect that the Applicant, after being advised of his rights during an administrative separation processing on 14 Sep 2005, elected to consult with a qualified counsel and submit a written statement to the separation authority, but chose to waive his right to the administrative board proceeding. In reviewing the Applicant’s records, t he Board could find no evidence to support the Applicant’s claim of misrepresentation or impropriety by his command or the legal counsel appointed to advise him. Accordingly, and with no evidence to prove otherwise, the Board found this issue to be without merit. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the administrative separation p rocess, 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 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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NAVY | DRB | 2010_Navy | ND1001506

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