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NAVY | DRB | 2011_Navy | ND1101248
Original file (ND1101248.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request
Application Received: 20110419
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       THREE P FA FAILURES

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20080502 - 20080618     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080619     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100723      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 47
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.41

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20100623 :       Article ( , b/w 20100511 - 20100525 )
         Awarded : (to E-2) Susp ended: (suspend 6 months)
         *Suspended FOP and RIR vacated 2010 0714 due to further misconduct

- 20100714 :       Article ( )
         Article ( )
         Article ( General Article , b reaking restriction )
          Awarded : (to E-1) Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20090628 :       For p hysical fitness assessment failure, failure to meet body composition assessment standards .

- 20100623 :       For violation of UCMJ A rticle 92, F ailure to obey order or regulation .

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.        Applicant contends his discharge for misconduct was impro p er and should have been for failing three Physical Fitness Assessments (PFAs) caused by medical reasons.

Decision

Date: 20 1 2 04 12             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 in clude evidence submitted by the Applicant. The Applicant identif ied one decisional issue for the Board ’s consideration . Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward a warrant officer, noncommissioned, or petty officer ), Article ( Failure to obey an order or regulation, 2 specifications) , and Article ( General Article, r estriction, breaking) . There was no evidence of trial by courts-martial. The Applicant ’s records also revealed pre-service involvement with civil law enforcement related to reckless endangerment, resisting arrest, harassment, and disorderly conduct (charges later reduced to disorderly conduct) prior to entering the Navy. Based on the serious offenses (violations of UCMJ Articles 91 and 92) committed by the Applicant while in-service , his command administratively processed for separation . The Board did not have the Applicant’s administrative separation documentation available to determine whether he exercised or rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Co nvening Authority review . The separation program code JKA listed on the Applicant’s DD Form 214 indicates he was not eligible for an administrative board hearing. The Applicant was separated from the Navy on 23 Jul 2010 with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense).

: (Decisional) ( ) . The Applicant contends his discharge for misconduct was improper and should have been for failing three PFAs caused by medical reasons. The NDRB conducted a detailed and thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. Although the Applicant did have one documented PFA f ailure (body composition evaluation, 25 Jun 2009: 66”/227 lbs at 30% BF), the record clearly reveals he received two NJPs for multiple violations of the UCMJ to include Article 91 (Insubordinate conduct), Article 92 (Failure to obey an order or regulation), and Article 134 (Restriction, breaking). Violations of UCMJ Articles 91 and 92 are considered serious offenses and punishable by up to two years confinement and a B ad C onduct Discharge or D ishonorable D ischarge if awarded at trial by punitive courts-martial (Special or General). Moreover, D epartment of Defense disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons , such as medical or PFA failures . While conducting a review of the Applicant’s record , the Board noted the Applicant’s final Evaluation Report (dated 16 Jul 2009 - 23 Jul 2010) contained the following Reporting S enior comments : “(The Applicant) requires constant supervision. He frequently produces substandard results and disrespectful behavior. (The Applicant’s) lack of military bearing, inability to adhere to Navy core values, and misconduct have become an undue burden on his department and the command. He is not recommended for advancement or retention . ” Per the Nav al Military Personnel Manual, wh en a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. 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 outweigh the positive aspects of the member’s service record.

The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , especially considering his grade and length of service, and f alls short of w hat is required for an upgrade in the characterization of service. T he NDRB determined via the available evidence that the Applicant’s administrative discharge due to misconduct was proper and equitable and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, 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 .

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 91 and 92 .


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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