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NAVY | DRB | 2013_Navy | ND1300349
Original file (ND1300349.rtf) Auto-classification: Denied

ex-BM2, USN
Current Discharge and Applicant’s Request
Application Received: 20121210
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       EXPIRATION OF TERM OF SERVICE

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19941031 - 19941122     Active:   199411 23 - 199 90203
                                    1999020 4 - 20010217
                                    20010218 - 200 3 02 09

Period of Service Under Review:
Date of Current Enlistment: 20030210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041028      Highest Rank/Rate: BM2
Length of Service: Y ear M onth s 19 D a ys
Education Level:        AFQT: 95
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.86

Awards and Decorations ( per DD 214):      (2) (2) (3) SCI

Periods of UA /C ONF :

NJP :
- 20041027 :      Article ( Fail to obey order or regulation )
         Article ( Assault , consummated by battery )
         Article ( General A rticle - disorderly conduct , drunkenness )
         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. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

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.        The Applicant contends the Navy failed to comply with applicable regulations in his separation process.
2.       The Applicant contends his post-service achievements as evidenced by his conduct in the California Army National Guard warrant consideration for an upgrade.

Decision

Date : 20 1 3 0829             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 for o f the Uniform Code of Military Justice (UCMJ): Article (Fail to obey order or regulation) , Article (Assault, consummated by battery) , and Article (General A rticle - disorderly conduct, drunkenness). The records reflect the Applicant’s command administratively processed for separation for Alcohol Rehabilitation Failure. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends the Navy failed to comply with applicable regulations in his separation process. The Applicant request s the NDRB correct his records to reflect his separation null and void and a separation code of “K A K. ” The record shows the Applicant was found guilty at NJP on 27 October 2004 for violation of UCMJ Articles 92, 128, and 134. He was discharged the next day, 28 October. The Applicant met the requirements for administrative separation for Alcohol Rehabilitation Failure and Misconduct (Serious Offense). For administrative separation processing, he warranted the rights to consult with qualified counsel, submit a written statement to the Separation Authority, and appear before an administrative separation board since he had more than 6 years of service. The Applicant has JPD in Block 26 (Separation Code) on his DD Form 214, which indicates he did not warrant an administrative separation board. This is incorrect. While administrative errors are not uncommon on DD Form 214s, this error supports the Applicant’s contention that he was never given full due process by not being offered to appear before an administrative separation board. Coupled with the rapid discharge one day after his NJP, the NDRB determined his discharge, though warranted, was improper ly conducted and so warrants an upgrade to Honorable and a narrative reason for separation change to Secretarial Authority. Relief granted .

: (Decisional) ( ) The Applicant contends his post-service achievements as evidenced by his conduct in the C alifornia Army National Guard warrant consideration for an upgrade. The Applicant submitted proof of enlistment in the California Army National Guard for the past six years, where he has excelled as an Army n oncommissioned o fficer , deployed in support of Operation Iraqi Freedom , and receiv ed numerous commendations and awards . He also submitted proof of completing a Master of Science degree in Criminal Justice and six character references . Since full relief was given in Issue 1, further consideration was not given on this issue, but the NDRB applauds the Applicant for his strong post-Navy accomplishments.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found the discharge , though warranted, was improper. Therefore, the characterization of service shall change to Honorable and the narrative reason for separation shall change to Secretarial Authority.


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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