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NAVY | DRB | 2012_Navy | ND1200635
Original file (ND1200635.rtf) Auto-classification: Denied

ex-ATAN, 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)        20061031 - 20070613     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070614     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110610      Highest Rank/Rate: AT3
Length of Service: Y ear s M onth s 27 D a ys
Education Level:        AFQT: 92
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 3.04

Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA /C ONF :

NJP :

- 20090925 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20101213 :      Article 95 (Resistance, flight, breach of arrest, and escape)
         Awarded : Susp ended:

S CM :   SPCM:

CIVIL ARREST:

- 20090908 :       Charges: DUI . [Extracted from Commanding Officer’s letter dated 20110604.]

C C :

- NFIR :   Offense: DUI
         Sentence : Two years probation, pay fines and attend Virginia Safety Action Program . [Extracted from Commanding Officer’s letter dated 20110604 ]

Retention Warning Counseling :

- 20090925 :       For drunken operation of a vehicle.





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 s 95 and 111 .



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

Applicant’s Issues

 1.        The Applicant contends the narrative reason for separation of Misconduct (Serious Offense) on his DD Form 214 is incorrect since a violation of Uniform Code of Military Justice (UCMJ) Article 95 is not a serious military offense pursuant to Naval Military Personnel Manual (MILPERSMAN) Article 1910-142.
 2.       The Applicant contends Block 28 on his DD Form 214 should reflect Completion of Required Active Service since he finished his enlistment.
3.       The Applicant contends his post-service conduct is worthy of consideration for an upgrade.
Decision

Date: 20 1 30117             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 included NAV PERS 1070/613 (Page 13) warning , for o f the Uniform Code of Military Justice (UCMJ): Article 95 (Resistance, flight, breach of arrest, and escape) and Article (Drunken or reckless operation of vehicle, aircraft, or vessel) , a civil arrest for Driving Under the Influence (DUI), and a civil conviction for DUI . Based on the offense s committed by the Applicant, 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 a General Court-Mar tial Convening Authority review .

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends the narrative reason for separation of Misconduct (Serious Offense) on his DD Form 214 is incorrect since a violation of Uniform Code of Military Justice (UCMJ) Article 95 is not a serious military offense pursuant to Naval Military Personnel Manual (MILPERSMAN) Article 1910-142. Per 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 , “M embers may be separated based on commission of a serious military or civilian offense when (1) specific circumstances of offense warrant separation; and (2) offense would warrant a punitive discharge per the Manual for Court s -Martial, A ppendix 12 for same or closely related offense. ” Per Appendix 12 of the Manual for Courts-Martial, a serious offense is one that could result in a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial. The Applicant had two serious - offense violations during his enlistment. Both Article 95 and Article 111 are considered serious offenses, because they both could have resulted in a punitive discharge if his command opted to refer charges to a Special or General Court-Martial. The Applicant refers to serious offenses as those involving violence, drug use, or sexual misconduct. Per MILPERSMAN Article 1910-142, offenses that involve violence, drug use, or sexual misconduct require mandatory separation processing. Commission of other serious offenses, such as violation of Articles 95 and 111, do not require mandatory separation processing, and separation is at the discretion of the commanding officer. The NDRB determined the narrative reason for separation of Misconduct (Serious Offense) was proper. Relief denied.

Issue 2: (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends Block 28 on his DD Form 214 should reflect Completion of Required Active Service since he finished his enlistment. The Applicant did not finish his required active service but was administratively separated for Misconduct (Serious Offense) three days before the completion of his four year enlistment. A review of his records shows that he was properly notified of administrative separation processing for Misconduct (Commission of a Serious Offense) and Misconduct (Pattern of Misconduct) due to his NJP - Page 13 retention warning - NJP

during his enlistment. However, his commanding officer recommended a characterization of service of Honorable, which is highly unusual since administrative discharge for Misconduct (Serious Offense) typically results in a General (Under Honorable Conditions) or Under Other Than Honorable Conditions characterization of service. The NDRB, however, is not authorized to change a characterization of service to a more unfavorable discharge and so the Honorable discharge will remain. After a complete review of the records, the NDRB determined the discharge was proper and equitable. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for a change to his narrative reason for separation. The NDRB considers 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. The Applicant provided a personal statement, college transcripts, and character reference letters. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable narrative reason as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The narrative reason for separation received was appropriate considering the length of service and UCMJ violations. 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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