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NAVY | DRB | 2013_Navy | ND1301082
Original file (ND1301082.rtf) Auto-classification: Denied

ex-ADC, USNR
Current Discharge and Applicant’s Request
Application Received: 20130419
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to: END OF OBLIGATED SERVICE

Summary of Service

Prior Service:
         US N R (DEP)        19951229 - 19960115    
         USNR      19960116 - 20010115
         USNR -R   20010116 - 20010117
         USNR     20010118 - 20031213
         USNR     20031214 - 20071201
         USNR     200 7 12 02 - 20110103
        
Period of Service Under Review:
Date of Current Enlistment: 20110104     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110914      Highest Rank/Rate: ADC
Length of Service: Y ear( s ) M onth( s ) 11 D a y ( s )
 Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 2.86

Awards and Decorations ( per DD 214):      (3) NRM SM (3) AFRM FLOC LOC (4)
Periods of UA /C ONF :

NJP :

- 20110202 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1 : Fraternizing by wrongfully engaging in an unduly familiar relationship with a lower
         ranking s ailor
         Specification 2 : Wrongfully soliciting unwanted sexual innue ndos to multiple female sailors
         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 :        


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

Applicant’s Issues

 1.        The Applicant contends his commanding officer disregarded the administrative separation board’s findings.
2.       The Applicant contends his commanding officer ’s report and recommendation inaccurately and erroneously reported the administrative separation board’s findings.
3.       The Applicant contends the administrative separation board’s finding that the facts and circumstances did not warrant separation was binding.
4 .       The Applicant contends his in-service conduct warrants an upgrade.

Decision

Date : 20131219             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. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failu re to obey order or regulation, 2 specifications : Specification 1: Fraternizing by wrongfully engaging in an unduly fami liar relationship with a lower ranking sailor and Specification 2: Wrongfully soliciting unwanted sexual innuendos to multiple female sailors) . 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 and request an administrative board , but waived his right to submit a written statement. The administrative separation board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed misconduct due to fraternization but it did not support that the Applicant had committed misconduct due to sexual harassment. The administrative separation board voted 3-0 that the facts and circumstances d id not warrant separation, however, the administrative separation board also voted 3-0 to recommend a suspended separation for 12 months or the maximum extent allowable.

: (Decisional) ( ) . The Applicant contends his co mmanding officer disregarded the administrative separation board’s findings. The Applicant further contends his commanding officer’s report and recommendation inaccurately and erroneously reported the administrative separation board’s findings. After a review of the record, the NDRB determined t here was an inconsistency created with the administrative separation board’s documentation when they marked that the facts and circumstances d id not warrant separation but still recommend ed a suspended separation for 12 months or the maximum extent allowable . The NDRB determined the administrative separation board’s intent was to recommend a suspended separation based on the Applicant’s misconduct due to fraternization . Therefore, the commanding officer did not materially err when he reported the administrative separation board’s findings . This conclusion is further supported by the Applicant’s counsel’s L etter of D eficiency dated 11 June 2011 , which stated, “Counsel for the respondent respectfully requests that the board’s decision be upheld, and uphold the board’s findings of 3-0 for suspended separation….” Further , the record clearly shows the commanding officer took into consideration the administrative separation board’s findings demonstrated by his non-con currence of the administrative separation board’s findings . T he Separati on Authority was provided a record of the proceedings, the administrative separation board findings/ recommendations , and the Applicant’s L etter of D eficiency and determined the Applicant’s misconduct warranted separation Under Other Than Honorable Conditions for Misconduct (Serious Offense) . The NDRB discerned no impropriety or inequity in the Applicant’s separation proceedings. Relief denied.





: (Decisional) ( ) . The Applicant contends the administrative separation board’s finding that the facts and circumstances did not warrant separation was binding. An a dministrative separation board ’s recommendation on separation i s just that, a recommendation , and it is not binding. The Separati on Authority retains the responsibility in the determination of whether separation is warranted . The record clearly shows the administrative separation board voted that the preponderance of the evidence supported that the Applicant had committed misconduct due to fraternization . Subsequently, the Separati on Authority determined the Applicant’s misconduct warranted separation. The NDRB discerned no impropriety or inequity in the Applicant’s separation proceedings . Relief denied.

4 : (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. The Applicant received Honorable discharges for his previous enlistments from January 1996 to January 2011. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his enlistment that started in January 2011, he was found guilty at NJP of violating UCMJ Article 92 and was processed for administrative separation. Based on the Applicant’s record of service in his current enlistment , the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. 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 s 92 and 134 .


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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