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NAVY | DRB | 2012_Navy | ND1200621

Original file (ND1200621.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20120125

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)        20090409 - 20091027     Active:

Period of Service Under Review:
Date of Current Enlistment: 20091028     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20101124      Highest Rank/Rate: SA
Length of Service: Y ear( s ) M onth( s ) 27 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.0

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     S CM :             SPCM:    CC:      Retention Warning Counseling :

CIVIL ARREST:
- 20100919 :       Charges: One count Assault (aggravated) and one count Assault (elevated/aggravated) [hit victim in face with brass knuckles and stabbed another victim nine times, extracted from Naval Criminal Investigation Service ( NCIS ) report 20100928]

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 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 128.

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

Applicant’s Issues

1.        The Applicant contends he was not afforded a meaningful opportunity to consult with qualified counsel prior to being required to elect or waive his rights and as a result did not fully understand his rights to counsel or his rights regarding an administrative board.
2.       The Applicant contends his command failed to follow the requirements of Naval Military Personnel Manual ( MILPERSMAN ) Article 1910-232 in properly screening him for a drug or alcohol problem and subsequently failing to offer him appropriate treatment prior to separation .
3 .        The Applicant contends his command did not wait for the conclusion of either the civilian investigation or the case itself before initiating separation proceedings.
4 .        The Applicant contends he was not provided copies of any documentation in regards to the facts or circumstances surrounding the separation action .

Decision

Date : 20 1 2 1206             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’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. The Applicant was arrested on 19 September 2010 for one count of Assault (aggravated) and one count of Assault (elevated/aggravated). Based on the preponderance of the evidence that the Applicant committed a related offense from the U niform Code of Military Justice (Article 128, Assault) and because that offense warrants a punitive discharge in accordance with the Manual for Courts -Martial, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends he was not afforded a meaningful opportunity to consult with qualified counsel prior to being required to elect or waive his rights and as a result did not fully understand his rights to counsel or his rights regarding an administrative board. The Applicant further contends that he had the right per MILPERSMAN Article 1910-406 to consult with qualified counsel prior to electing any rights. T he re is no evidence that the Applicant was denied that right or was not afforded a meaningful opportunity to consult with qualified counsel prior to being required to elect or waive his rights . The record of evidence clearly shows the Applicant waived his rights on 06 October 2010 to consult with a qualified counsel, submit a written statement, and request an administrative board when notified of administrative separation processing . The Applicant submitted no evidence to support his contention that he was not afforded a meaningful opportunity to consult with a qualified counsel prior to being required to elect or waive his rights , therefore, the NDRB determined relief on this issue was not warranted . Relief denied.

: (Decisional) ( ) . The Applicant contends his command failed to follow the requirements of MILPERSMAN Article 1910-232 in properly screening him for a drug or alcohol problem and subsequently failing to offer him appropriate treatment prior to separation. Regulations require members who have an ongoing history of alcohol or drug abuse to be medically screened for an alcohol or drug problem. If diagnosed as dependent on alcohol or drugs by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation. The Applicant contends that since the civilian assault charges were alcohol-related, he should have been screened. The NDRB could not determine if the Applicant was screened for dependence prior to separation but

determined that it had no bearing on the propriety and equity of his discharge Under Other Than Honorable Conditions for Misconduct (Serious Offense). A preponderance of the evidence (his arrest) showed that he committed a serious offense and that separation was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his command did not wait for the conclusion of either the civilian investigation or the case itself before initiating separation proceedings. In accordance with the MILPERSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant’s civilian arrest for charges of assault provided the preponderance of the evidence and gave the commanding officer sufficient reason to initiate separation proceedings. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he was not provided copies of any documentation in regards to the facts or circumstances surrounding the separation action. The record contained no evidence of any wrongdoing by the Applicant’s c hain of command or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was 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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NAVY | DRB | 2012_Navy | ND1200621

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