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NAVY | DRB | 2012_Navy | ND1201475
Original file (ND1201475.rtf) Auto-classification: Denied

ex-IT3, USN
Current Discharge and Applicant’s Request
Application Received: 20120626
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)        20061212 - 20070611     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070612     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110922      Highest Rank/Rate: IT2
Length of Service: Y ear( s ) M onth( s ) 11 D a y ( s )
 Education Level:        AFQT: 79
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 3.2 ( 5 )        OTA: 3.38

Awards and Decorations ( per DD 214):      LoC

Periods of UA /C ONF :

NJP :

- 20110828 :      Article 120a (Stalking)
         Specification 1: Wrongfully engage in a course of conduct directed at Petty Officer Third Class, to wit: repeatedly following her to various spaces throughout the ship numerous times after being asked by Petty Officer to stay away, thereby inducing in Petty Officer, a reasonable fear of bodily harm to herself
         Specification 2: Wrongfully engage in a course of conduct directed at Petty Officer Third Class, to wit: using his administrator access on the NIPR network to check Petty Officer’s email and then asking her questions about her personal emails, thereby inducing in Petty Officer, a reasonable fear of bodily harm to herself
         Article (Assault)
         Specification 1: Assault Petty Officer by shoving her to the ground on the fantail
         Specification 2: Assault Petty Officer by pulling on her pants and grabbing he r by the back of her hair as she went up a ladder in the hangar
         Article (Failure to obey order or regulation)
         Specification 1: Accessing Petty Officer P_ ’s email account outside of official duties
         Specification 2: Accessing Petty Officer S_’s email account outside of official duties
         Article (Provoking speeches or gestures)
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :







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 36, effective 18 August 2011 until Present, 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 92, 117, 120a , and 128 .


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

Applicant’s Issues

 1.        The Applicant wants to be eligible for education benefits.
2.       The Applicant contends his record of service warrants consideration for an upgrade.
 3 .       The Applicant contends his emotions took control and turned him into a different person.
4 . The Applicant contends his command c ould have solved the problem by moving him (or involved personnel) to another ship instead of separating him from the Navy.

Decision

Date : 20 1 3 0410             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 . T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 120a (Stalking , 2 specifications involving a female petty officer ) , Article 128 ( Assault , 2 specifications involving a female petty officer) , Article 92 (Failure to obey order or regulation , 2 specifications involving accessing a female petty officer’s email account), and Article 117 ( Provoking speeches and gestures , 1 specification involving a male S ailor). Based on the offenses 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 but did submit a written statement .

: (Nondecisional) The Applicant wants to be eligible for education 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. 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. Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his record of service warrants consideration for an upgrade. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Articles 92, 117, 120a, and 128 are offenses that warrant processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his emotions took control and turned him into a different person. The Applicant was involved in a personal relationship with a female petty officer in his command. When the relationship ended, the Applicant committed a series of crimes against her and also against another male S ailor in his command. The Applicant’s misconduct, aboard a United States Naval vessel, was serious and reflected a significant negative aspect of the Applicant’s performance and conduct in service. There is nothing in the record to indicate the Applicant was not responsible for his actions or should not be held accountable for his misconduct. The NDRB recognizes that serving in the

military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB determined the Applicant’s command took into account his past per formance when recommending a very lenient Under Honorable Conditions (General) characterization of service. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his command could have solved the problem by moving him (or involved personnel) to another ship instead of separating him from the Navy. The Applicant bears responsibility for the consequences of his misconduct , and he was held accountable when his misconduct wa s determined to be willful. The Applicant’s commanding officer recommended that he be administratively separated , because his “misconduct and failure to adhere to the policies set forth by the U. S. Navy have made him unfit for naval service.” The commander’s strong wording reflects the serious threat to good order and discipline that the Applicant’s conduct represented to the unit and for which a transfer was determined to be inappropriate. 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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