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NAVY | DRB | 2011_Navy | ND1101091

Original file (ND1101091.rtf) Auto-classification: Denied

ex-MASN, USN

Current Discharge and Applicant’s Request

Application Received: 20110329

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       UNSATISFACTORY DRILL PARTICIPATION

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20070309     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100723      Highest Rank/Rate: MA3
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 19 D a y ( s )
         Active   Y ear( s ) M onth( s ) 26 D a y ( s )
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.43

Awards and Decorations :

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

C IV ARREST:

- 20091121 :       Arrest ed on outstanding warrant after stopped for a seat belt violation, then provid ed false name to police officer: Warrant charges : Count 1: Terroristic threats reckless disregard risk ; Count 2: Domestic assault . Court date pending.

C C :      Retention Warning Counseling :

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 :

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

Applicant’s Issues

1.        The Applicant contends his narrative reason for separation is inaccurate and should be change d to Unsatisfactory Drill Participation.
2.       The Applicant contends he was prematurely discharge d from the Navy before he could prove his innocence in a court of law.

Decision

Date: 20 1 2 0524             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 Board did complete 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 contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers’ nonjudicial punishments, or trial by courts-martial. The record did reflect the Applicant was arrested and convicted in civilian court for domestic violence at least once , violat ed a court - ordered protection order , and made a false statement to the p olice . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board .

: (Decisional) ( ) . The Applicant contends he was prematurely discharge d from the Navy before he could prove his innocence in a court of law and that his narrative reason for separation is inaccurate and should change to Unsatisfactory Drill Participation . In accordance with the Naval Military Personnel Manual, a servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the U niform Code of Military Justice (UCMJ) and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The Applicant’s record indicates that he had a history of civil violations and convictions , even after being counseled by his chain of command several times . In the commanding officer’s letter of administrative separation dated 19 May 2010, the Commanding Officer stated , “ I support the administrative separation of MASN B_ . His chain of command has tried to give him the benefit of the doubt and a chance to show he has the ability to become a good Sailor. Rather than take him to NJP, they tried counseling and working with him. However, he continues to find himself in trouble with civilian authorities. He was convicted for violating an Order for Protection in February 2009 which was in part due to domestic violence. Although he is still waiting for his court date, he has been charged with domestic assault and terrorist threats from events in November 2009. When stopped for a motor vehicle violation, he gave a false name to the police officer which led to his arrest for a warrant regarding the November charges. MASN B _ has failed to live up to the core values the Navy places on its Sailors. ” Even without the dismissed charges from August 2010, the Applicant met the requirements for separation from the Navy for commission of a serious offense in that his previous offenses were violations of UCMJ Articles 107 (False official statement) and 128 (Assault) .

After a review of the Applicant’s service record, the NDRB determined that the Applicant had been notified of separation proceedings for Unsatisfactory Drill Participation on 9 December 2009 but was subsequently re-notified for separation proceedings on 16 April 2010 for Misconduct (Commission of a Serious Offense). As discussed above, the NDRB determined that the basis for discharge was proper. T he Applicant contends he was not given a hearing prior to being discharged. Pursuant

to Navy regulation s , a servicemember is not entitled to an Administrative Separation Board unless the least favorable characterization of service is Under Other Than Honorable Conditions or the servicemember has at least six years of active duty service. Since the Applicant had less than six years of service at the time of discharge and was being recommended for a General (Under Honorable Conditions) characterization of service, he was not entitled to a hearing. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, was 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, and the awarded characterization of service and narrative reason for separation w ere proper and equitable. Relief denied.

The NDRB did note that there was an administrative error in a Page 13 entry in the Applicant’s service record from 23 July 2010. The type of discharge was incorrectly stated as “General (Other Honorable Conditions).” The Applicant received a General (Under Honorable Conditions) discharge.

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 for additional information.

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 s of the UCMJ, Article s 107 and 128 .

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 | ND1101091

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