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NAVY | DRB | 2013_Navy | ND1300970
Original file (ND1300970.rtf) Auto-classification: Denied

ex-LS2, USN
Current Discharge and Applicant’s Request
Application Received: 20130410
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)        19940713 - 19940719     Active:            19940720 - 19971110
                                             19971111 - 20031001
                                             20031002 - 20090719
Period of Service Under Review:
Date of Current Enlistment: 200907 2 0     Age at Enlistment: 39
Period of E nlistment : Years Extension
Date of Discharge: 20130118      Highest Rank/Rate: LS2
Length of Service: Y ear s M onth s 29 D a y s
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.10

Awards and Decorations ( per DD 214):      (6) (4)

Periods of UA /C ONF :

NJP :     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:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY GOOD CONDUCT MEDAL (6) , NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, IRAQ CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON (4), NAVY “E” RIBBON, HUMANITARIAN SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, KOREAN DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON (4), ENLISTED AVIATION WARFARE SPECIALIST, LETTER OF COMMENDATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 94 0 720 UNTIL 090719 ”

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:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 1.       The Applicant seeks to be reinstated on active duty with rank and privilege at time of discharge in order to retire from active service.
2.       The Applicant seeks an upgrade to qualify for veterans benefits.
3.       The Applicant contends he is innocent of the alleged misconduct that led to his separation.
4.       The Applicant contends he was denied a trial by court-martial.
5.       The Applicant contends his acquittal at a S pecial C ourt- M art i al in 2006 prejudiced the ad ministrative separation board.

Decision

Date: 20 1 3 1121             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 standards of equity and propriety. The Applicant’s record of service in his current enlistment included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant was processed for administrative separation for Commission of a Serious Offense, to wit: violation of Uniform Code of Military Justice (UCMJ) A rticle 120 by sexual ly assault ing a Japanese national. 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 an administrative board . The administrative board, by a vote of 3 to 0 , found that the preponderance of the evidence support ed misconduct and recommended that the Applicant be separated Under Other Than Honorable Conditions. The S eparation A uthority ( Commander, Navy Personnel Command ) concurred with the board’s recommendations and directed the Applicant be separated Un der Other Than Honorable Conditions for Misconduct (Serious Offense) .

: (Nondecisional) The Applicant seeks to be reinstated on active duty with rank and privilege at time of discharge in order to retire from active service. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Only the B oard for Correction of Naval Records can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of reinstatement.

: (Nondecisional) The Applicant seeks an upgrade to qualify for veterans 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.

: (Decisional) ( ) . The Applicant contends he is innocent of the alleged misconduct that led to his separation . In accordance with Naval Military Personnel Manual Article 1910-142, 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 was provided the opportunity to present his case before an administrative board , which determined the preponderance of the evidence support ed misconduct , and the Separation Authority agreed. His receipt of the Good Conduct Medal during this period does not contradict the Under Other Than Honorable Conditions discharge. The Good Conduct Medal only means he did not receive an NJP or a court-martial during the 3-year period of eligibility. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he was de nied a trial by court-martial . According to the record, the Applicant ’s command never offered to adjudicate UCMJ violations at NJP. As a result, the Applicant did not have the right to refuse NJP and request a court-martial. Based upon a preponderance of the evidence as determined by his commanding officer, he initiated administrative separation proceedings against the Applicant, who elected to present his case before an administrative separation board. After a complete review of the records and the Applicant’s statements and documentation, the NDRB determined the Applicant received full due process. Relief denied.
5 : (Decisional) ( ) . The Applicant contend s his acquit tal at a S pecial C ourt- M art i al in 2006 prejudiced the administrative separation board. The record shows the Applicant’ s counsel did not submit a letter of deficiency contesting this issue following his administrative separation board . However, the Applicant did provide documentation that indicates he filed an Inspector General complaint claiming incompetence of his coun se l in regard to this issue. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured the Applicant was afforded all of his administrative rights pursuant to the separation process. As such, the NDRB determined this issue does not provide a foundation upon which the NDRB can grant relief. 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 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 120.


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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