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NAVY | DRB | 2011_Navy | ND1101366

Original file (ND1101366.rtf) Auto-classification: Denied

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20110505

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USN (ROTC)     19 930901 - 199 40803     Active: 19940804 - 19980314 HON
                           USN 1 9 980315 - 20010627 HON
                           USN 20010628 - 2005121 6 HON

Period of Service Under Review:
Date of Appointment : 200 51217     Age: 31
Years Contracted : Indefinite
Date of Discharge: 20080930       Highest Rank : ENS
Length of Service: 0 2 Year s 0 9 Months 1 4 D ays
Education Level: 12       AFQT: 87
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      NMCAM (2) MUC NAVY “ E” GCM (2) NDSM AFEM SWASM GWOTEM GWOTSM SSDR (5) OSR ( 7 )

Periods of UA /C ONF :

NJP : NONE         S CM : NONE        S PCM: NONE                 Retention Warning Counseling : NFIR

C IVIL ARREST/ C HARGE : 1
                  - 20071006:      Charge: Aggravated assault with a deadly weapon
                                    Sentence: Pending

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

“ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
         19940804 UNTIL 20051216 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ SECNAVINST 1920.6C ”

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until PRESENT establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 .

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

Applicant’s Issues

1.        Applicant contends his discharge was based on an isolated incident in 14 years of otherwise honorable service.
2.       Applicant contends the civilian charges for which he wa s discharged were dropped.

Decision

Date: 20 1 2 07 12             Location: Washington D.C .        R epresentation : none

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 identified two decisional issues for the Board’s consideration. The Applicant’s record of service included one civil charge for aggravated assault with a deadly weapon . The Applicant’s record also references the Applicant’s inability to progress in surface warfare officer qualification training and in progression as a leader. Due to continued inability to meet the standards and performance expectations required of a Naval O fficer, the Applicant was processed for administrative separat ion from the Navy due to substandard performance. O n 11 September 2007, the Commander, Navy Personnel Command (PERSCOM) directed the Applicant be discharged with an Honorable discharge on the basis of Substandard Performance. However, the weekend prior to his administrative separation from the Navy, on or about 6 October 2007, he was involved in an altercation that resulted in him being arrested for discharging a shotgun through his neighbor’s front door. Subsequent to his arrest and filing of civil felony charges, on 1 November 2007, PERSCOM directed the Applicant show cause for retention b efore a Board of Inquiry (BOI) due to the alleged violations of UCMJ Articles 128 (Assault) and Article 133 (Conduct unbecoming an officer). Upon completion of the BOI proceedings on 24 March 2008 , the Board found: ( By 3-0 vote) that the Applicant should be separated from the Navy; and (By 2-1 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge . On 3 September 2008, after careful consideration of the facts and circumstances surrounding the Applicant’s case, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) directed that the Applicant be administratively separated from the Navy as recommended by the Board of Inquiry and subsequent endorsers from within the chain of command. The Applicant was separated from the Navy on 30 September 2008 with an Under Other Than Honorable Conditions discha rge due to Misconduct (Other).

Issues 1-2 : (Decisional) ( ) . The Applicant contends his discharge was improper/ inequitable as it was based on an isolated incident in 14 years of otherwise honorable service, and that the civil charges for which he was discharged were dropped . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service (along with the appropriate characterization of service) in order to maintain good order and discipline ; Officer violation s of UCMJ Article s 128 and 133 meet this standard . At the time the Applicant committed the misconduct, he was within one week of separating from the Navy with an Honorable discharge due to Substandard Performance. However, after evidence and argument were presented before a BOI hearing on 24 March 2008 , the Applicant was determined (via a preponderance of the evidence) to have committed the misconduct for which he was charged and was recommended for an Under Other Than Honorable Conditions discharge. Although the Aransas County, Texas Magistrate Court dismissed the felony charge(s), on or about 20 February 2008, and declined to prosecute the Applicant (due to “the injured party requests that case not be prosecuted and expressed reluctance to be a witness for the state ” ), the BOI found via a preponderance of the evidence that the Applicant had committed the misconduct. Per the Naval Military Personnel Manual, w hen 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. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. 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 , experience, and total length of service, and falls short of w hat is required for an upgrade in the characterization of service . Accordingly, the NDRB 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 the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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), 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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NAVY | DRB | 2011_Navy | ND1101366

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