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NAVY | DRB | 2013_Navy | ND1300717
Original file (ND1300717.rtf) Auto-classification: Denied

ex-ET3, USN

Current Discharge and Applicant’s Request

Application Received: 20130211
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)        20070228 - 20071105     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071106     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110615      Highest Rank/Rate: ET2
Length of Service: Year(s) Month(s) 10 D ay(s)
Education Level:        AFQT: 88
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 3.02

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20110417 :      Article (Failure to obey order or regulation)
         Article (Assault, consummated by a battery)
         Awarded: ORAL ADMINITION Suspended:

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

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
        
2007 11 06
         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:        
         Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

1.       The Applicant seeks an upgrade for education benefits and employment opportunities.
2.       The Applicant contends he was not in a stable state of mind during the period when he committed the misconduct.
3.       The Applicant contends he did not have the ability to request court martial
and have his case reviewed by an impartial authority .
4.       The Applicant contends his misconduct was an isolated incident in an otherwise
h onorable period of service.
5.       The Applicant contends the responsibility
for training the substandard S ailor who the Applicant hazed should partially rest with the Navy and not solely with the Applicant.
6.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 3 1106             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. 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 92 ( Failure to obey order or regulation, 1 specification) and Article 128 ( Assault,1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant seeks an upgrade for education benefits and employment opportunities. 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 re-characterization 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. Furthermore, 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.

: (Decisional) ( ) . The Applicant contends he was not in a stable state of mind during the period when he committed the misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The Applicant submit ted a counseling document dated four months after his discharge that implies the Applicant may have suffered from A cute S tress D isorder at the time of the misconduct. After a review of the Applicant’s medical and service record s and his submitted documentation , the NDRB determined there is nothing to show that he was not responsible for his actions or should not be held accountable for his misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not have the ability to request court martial and have his case reviewed by an impartial authority . Per the Manual for Courts-Martial, Sailors assigned to afloat commands do not have the right to request a trial by court-martial when presented with charges at NJP. The Applicant was provided full due process. Relief denied.


Issue 4: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in an otherwise h onorable period of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article s 92 and 128 are serious offenses that warrant processing for administrative separation regardless of grade, performance, time in service , or recommendations from fellow Sailors . 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. The Applicant was found guilty of violation of Article s 92 and 128. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge and a lenient recommendation for a General (Under Honorable Conditions) characterization of service . 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.

Issue 5: (Decisional) ( ) . The Applicant contends the responsibility for training the substandard S ailor who the Applicant hazed should partially rest with the Navy and not solely with the Applicant. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and that an upgrade was not warranted. Furthermore, there is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Navy improperly trained , promoted, or mentored the service member involved in the Applicant’s misconduct. Even if the Navy had improperly trained or promoted the victim, it does not justify an assault by the Applicant. Relief den ied.

Issue 6: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. 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, a college transcript, and a character reference. 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 discharge 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 t he characterization of service 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.

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 92 and 128 .


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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