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NAVY | DRB | 2011_Navy | ND1100345
Original file (ND1100345.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20101110
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)        20060608 - 20061106     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061107     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100504      Highest Rank/Rate: MM3
Length of Service: Y ear s M onth s 28 D a ys
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.45

Awards and Decorations ( per DD 214):      NAVY “ E ” (3) GWOTSM NDSM

Periods of UA /C ONF :

NJP : 1

- 20100404 :      Article (Failure to obey order or regulation, 2 specifications)
         Article (False official statement)
         Article 134 (Obstructing justice)
         Awarded: RIR FOP RESTR ORAL REPRIMAND Suspended:

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

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ 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 29, effective 10 November 2009 until 17 August 2011, 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 s 92, 107 , and 134.



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

Applicant’s Issues

 1.        The Applicant seeks an upgrade and to be returned to active duty in the U.S. Navy.
2.       The Applicant contends improper and unethical conduct by the command’s legal officer led to him not receiving due process .
3.       The Applicant contends there was insufficient evidence to justify him being found guilty at N JP and subsequently separated.
4.       The Applicant contends this was an isolated incident and his performance during his enlistment warrants an upgrade.
Decision

Date : 20 1 2 0206    Location: Washington D.C .       R epresentation : Civilian counsel

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’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, 2 specifications) , Article (False official statement) , and Article 134 (Obstructing justice) . Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade and to be returned to active duty in the U.S. Navy. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends improper and unethical conduct by the command’s legal officer led to him not receiving due process . The record confirms the command’s legal officer was the witness who initiated the investigation into drug use by the Applicant and several other S ailors while attending a concert. The record contains no evidence the officer’s conduct as a witness was prejudicial to the Applicant’s rights or somehow caused the Applicant’s situation to become more severe. In fact, the Applicant’s UCMJ violations warranted an Under Other Than Honorable Conditions discharge or a punitive discharge (i.e., Bad Conduct) if it had been prosecuted at a Special Court-Martial. The Applicant was found guilty at NJP of violating UCMJ Articles 92, 107 , and 134. The Applicant did submit documentation that the legal officer made improper sexual advances and inappropriate statements following the NJP and during the discharge process . However, the NDRB found no evidence this improper conduct had any impact on the equity and propriety of the Applicant’s discharge proceedings and characterization of service. M isconduct by another member of the command does not excuse the Applicant’s own misconduct , which is a matter of record. The NDRB determined the Applicant is fortunate to have received a General (Under Honorable Conditions) characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant contends there was insufficient evidence to justify him being found guilty at NJP and subsequently separated. NJP is an administrative procedure in which a preponderance of the evidence is sufficient to arrive at a finding of guilty. The burden of proof is substantially lower than at a court-martial. The decision to administratively separate a servicemember is made independently of the imposition of NJP per regulation and is a separate and distinct process from NJP. Further, the recommendation to separate a servicemember is made

by the Commanding Officer (CO) and is approved by the Separation Authority (in this case, the CO of the USS Frank Cable) . Careful examination of the record revealed no indication of inequity or impropriety in the conduct of the Applicant’s NJP or in his administrative separation proceedings. The investigat or clearly concluded the Applicant had violated Articles 92, 107, and 134 , and the Applicant’s CO found him guilty at NJP . These are serious offenses that warrant confinement and a punitive discharge if adjudicated at S pecial C ourt- M artial. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. The Applicant’s discharge with a General (Under Honorable Conditions) characterization of service after being found guilty of violating UCMJ Articles 92, 107, and 134 is not unusual, uncommon, or severe. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends this was an isolated incident and his performance during his enlistment warrants an upgrade. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Articles 92, 107, and 134 (Obstructing justice) are offenses requiring mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. 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 d ischarge 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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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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