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NAVY | DRB | 2011_Navy | ND1100351

Original file (ND1100351.rtf) Auto-classification: Denied

ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20101122

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)        19891120 - 1990930      Active: 19901001 - 19950104 HON
                                    USN 19950105 - 19990103 HON
                                    US N 19990104 - 20021105 HON
Period of Service Under Review:
Date of Current Enlistment: 20021106     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031003      Highest Rank/Rate: OS2
Length of Service: Y ear s M onth s 28 D a ys
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.3 ( 3 )        OTA: 2.43

Awards and Decorations ( per DD 214):      NUC NDSM SSDR (2) SWASM AFEM JMUA (2) HSM GCM (3) KLM NMCAM NAVY “ E”
Periods of UA /C ONF :

NJP : 1
- 20030430 :      Article 86 (Absence without leave)
         Article 87 (Missing movement)
         Article 107 (False official statement)
         Awarded: RIR (to E-4) RESTR EPD Suspended: RIR (suspend 3 months)

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

C C : 1
- 20030222 :       Offense: Assault/Battery of a family member, obstructing justice, violation of a protective order
         Sentence : CONF 12 months ( s uspended), Navy Substance Abuse Treatment

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19901001 UNTIL 20021105 ”
         Block 26, Separation Code, should read: “HKQ ”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 128.

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

Applicant’s Issues

1.        Applicant contends his discharge was inequitable when compared to his more than 13 years of honorable service.
2.       Applicant contends his command improperly reprimanded him because of medical issues.

Decision

Date: 20 1 2 02 2 4             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 identified two decisional issues for the Board’s consideration. The Board conducted a thorough review o f the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) , Article 87 (Missing movement) , and Article 107 (False official statement) , and one civilian conviction , on 22 Feb 2003 , for an 11 Sep 2000 arrest for Assault and B attery of a family member and obstructing justice . A separate 1 Apr 2003 court conviction (Norfolk Juvenile and Domestic Relations Court) was found within the record for violation of a protective order (arrest date on or about 21 Feb 2003 ) , which resulted in a 12 - month suspended jail sentence. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure on 21 Aug 2003 , the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board . On 8 Oct 2003, the Applicant’s Commanding Officer endorsed his administrative separation package stating , “Throughout his Naval service, (the Applicant) has had numerous opportunities to correct his deficient and inconsistent behavior. He is a smart and talented Operations Specialist who could have been an asset to any command which he was assigned to, but he let his lack of judgment ruin what would have been a promising career. He had a tremendous amount of potential, but despite many interventions by a countless amount of people , he let his lack of consistency put him in a position where he became an administrative burden on this command, as well as the Navy. Therefore, I separated him with a General (Under Honorable Conditions) discharge. ”

: (Decisional) ( ) . The Applicant contends his discharge was inequitable when compared to his more than 13 years of honorable service. A review of the Applicant’s record reveals significant detail surrounding the Applicant’s civil arrest and subsequent conviction that resulted in his administrative separation from the Navy. Additionally, his Evaluation and Counseling report marks and comments show a pattern of inconsistent performance and conduct as follows: [ 16 Mar 2002-15 Mar 2003 ] “(The Applicant ) is a knowledgeable and capable Second Class Petty Officer who has the potential to be a leader in OI division, however, his military bearing and physical fitness are below standards…not within body fat standards for Nov 2002 PFA. (The Applicant) possesses the requisite knowledge to effectively develop subordinates, however, his continued lack of positive leadership, repeated failure to use the chain of command and lack of military bearing provides a poor example to command and divisional personnel . ”

On 22 May 2003, the Applicant submitted a statement of rebuttal regarding his Evaluation and C ounseling Report (dated 22 May 2003). “I do not agree with these evaluation marks. They are bias and just another tool used to create more mis-conduct or be-little me as a sailor. My work ethics and actions as a second class petty officer are above and beyond most second class petty officer level. I have not dropped my level of performance on this ship, this ship has dropped its performance for the crew since March 2002. I used to enjoy my job until I was met with prejudice and more discrimination since I’ve been in the Navy. It seems that you have to be someone’s best friend or laugh at this person joke to get properly evaluated on board. If you don’t have HI-VIS jobs you are thought of as really not on the top. This is the third evaluation that I have been misrepresented. I think that there should be some type of team to look into my situation. I don’t dislike the Navy and the system set forth for us

to be evaluated but I think it should be maintained by outside help for its effectiveness. Furthermore God is the only one that counts when it comes to evaluating me. These marks don’t get me into heaven praying for my enemy will. I hope he prospers in whatever it was that he set out to do. May God bless this entire Navy so that it won’t continue to hurt the people that care about this country . ” On 1 Jun 2003, the Applicant’s Commanding Officer submitted an evaluation statement to the Commander, Navy Personnel Command regarding the disputed Evaluation and Counseling Report (dated 22 May 2003) written on the Applicant. His statement read : “This evaluation was completed on the occasion of (the Applicant’s) NJP held on 30 Apr 2003. Through a preponderance of the evidence, (the Applicant) was charged with violating several articles of the UCMJ, Article 86, Unauthorized absence, Article 87, Missing Movement , and Article 107, False Official Statement, for which he was found guilty in all specifications. (The Applicant) is a knowledgeable Operations Specialist but lacks maturity. He is ruled by his temper and consistently fails to adhere to the chain of command. He has been counseled numerous times at all levels of the chain of command yet still shows no indications of correcting his behavior. This evaluation fairly reflects the talents and contributions of (the Applicant) as an Operations Specialist, while detailing the behavioral issues associated with his personal conduct . ”

Per the Naval Military Personnel Manual (MILPERSMAN), a Sailor may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Further, upon separation, if a member’s overall trait average (OTA) is below 2.49 , the Sailor can be awarded a General (Under Honorable Conditions) discharge. The Applicant’s OTA average during the current enlistment was 2.43 . Based on the cumulative OTA marks , Commanding Officer NJP , and the civil conviction within t his enlistment period, a General (Under Honorable Conditions) discharge was warranted . Accordingly, the NDRB found that the Applicant’s administrative separation was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. The NDRB will recommend to the Commander, Navy Personnel Command, that the Applicant’s DD Form 214 be amended to annotate continuous H onorable active service from 1 Oct 1990 to 5 Nov 2002. Relief denied.

: (Decisional) ( ) . The Applicant contends his command improperly reprimanded him because of medical issues. The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the NDRB conducted an exhaustive review of the Applicant’s service and medical records and could find no evidence of command impropriety. Evidence within the record clearly reflects the Applicant’s willful misconduct that resulted in NJP for violation of UCMJ Articles 86, 87, and 107, and a civil arrest and subsequent conviction for assault and battery of a family member, obstruction of justice, and violation of a protective order. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When reviewing discharges, the Board 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. With no evidence available to question or otherwise rebut the presumption of regularity in this case , the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. 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 sh all 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 | 2011_Navy | ND1100351

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