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NAVY | DRB | 2011_Navy | ND1101668
Original file (ND1101668.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20110629
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)        20020920 - 20030708     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030709     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060707      Highest Rank/Rate: SN
Length of Service: Y ear s M onth s 29 D a ys
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.17

Awards and Decorations ( per DD 214):      NDSM GWOTSM MUC

Periods of UA /C ONF :

NJP : 2

- 20051221 :      Article 86 (Absence without leave)
         Article 92 (Failure to obey order or regulation)
         Awarded: RIR FOP RESTR EPD Suspended: RIR FOP

- 20060607 :      Article 86 (Absence without leave)
         Article 90 (Assaulting or willfully disobeying a superior commissioned officer)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
          Awarded : RIR FOP RESTR EPD Susp ended:

S CM : NONE SPCM: NONE C C : NONE

Retention Warning Counseling : 2

- 20051020:      For failure to attend three PT sessions

- 20051221 :       For absence without leave and failure to obey order or regulation

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ 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 11, effective 26 April 2005 until 11 June 2008, 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 90 , 91 , and 92 .



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

Applicant’s Issues

 1.        The Applicant contends the policies and procedures regarding discharges from the Navy were not afforded to her and differ from the current policies and procedures.
2.       The Applicant contends she did not commit the misconduct for which she was discharged .
Decision

Date : 20 1 2 0821             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 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 two NAVPERS 1070/613 (Page 13) warning s and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 2 specifications ) , Article 90 (Assaulting or willfully disobeying a superior commissioned officer) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , and Article 92 (Failure to obey order or regulation). B ased on the offenses committed by the Applicant, her command administratively processed her for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends the policies and procedures regarding discharges from the U.S. Navy were not afforded to her and differ from the current policies and procedures . The record indicate s equity and propriety on the part of the G overnment in the Applicant’s case. She was charged and found guilty of committing serious offenses of the UCMJ . Per the Manual for Courts-Martial, a serious offense is defined as a UCMJ violation that could result in a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial. Whether or not an offense has the potential to result in death or serious injury has absolutely nothing to do with what defines a serious offense. The Applicant was found guilty of violating UCMJ Articles 90, 91, and 92, all of which are considered serious offenses per Appendix 12 of the Manual for Courts-Martial, which states that the violation of each of these articles could result in a maximum punishment of a punitive discharge. Her command, however, de cided not to refer charges to a Special Court-Martial but instead opted for the more lenient administrative discharge. In addition to meeting the requirements for administrative separation due to Misconduct - Commission of a Serious Offense , the Applicant also met the requirements for separation due to Misconduct - Pattern of Misconduct . Per Article 1910-140 of the Naval Military Personnel Manual (not only the version that was in effect at the time of her separation but also the current version), the Applicant met the requirements with her NJP (20051221) - Page 13 retention warning (20051221) - NJP (20060607). The Separation Authority, however, ordered that the primary reason for separation should be Misconduct (Serious Offense), and this is properly reflected on her DD Form 214. The NDRB determined that the Applicant’s separation was both proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends she did not commit the misconduct for which she was discharged. The Applicant was the subject of two NJPs while on her first enlistment and was found to be guilty of the charges by her Commanding Officer. Her Commanding Officer ma d e a statement in his request to administratively separate her that she admitted to the charges against her at the NJPs. The Applicant had the opportunity during the administrative separation process to challenge the charges against her by choosing to appear before an administrative separation board , but she waived her rights and accepted her discharge without making a statement or challenging the charges. If the Applicant felt s he was mistakenly charged, it was h er obligation to contest those charges at the time they were made. During a n administrative separation board, s he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support h er contention s. The NDRB determined that her administrative separation Under Other Than Honorable Conditions for Misconduct (Serious Offense) was both proper and equitable. 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 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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