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NAVY | DRB | 2013_Navy | ND1301175
Original file (ND1301175.rtf) Auto-classification: Denied

ex-FCSN, USN
Current Discharge and Applicant’s Request
Application Received: 20130508
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)        20081016 - 20090127     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090128     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20121019      Highest Rank/Rate: FC3
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
 Education Level:        AFQT: 9 5
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 2.3 ( 4 )        OTA: 3.23

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20120925 :      Article (Assault)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 2012 0709 :       For second B ody Composition Assessment failure.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT (SERIOUS OFFENSE) ”
        
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 :        

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 128 .


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

Applicant’s Issues

 1.        The Applicant contends he was found guilty on the basis of hearsay evidence that would not have held up in a court-martial.
2.        The Applicant contends he was not trying to escape the demands of N aval J ustice as evidenced by the fact that he did not appeal his nonjudicial punishment.
3.       The Applicant contends his discharge was unduly harsh , because he provided evidence of repentance for having broken his ethic of nonviolence and chose to suffer penalties imposed at nonjudicial punishment.
4.       The Applicant contends his commanding officer would have reversed the discharge had he renounced this ethic of nonviolence and submission of a Conscientious Objector application.
 5.       The Applicant contends his discharge was based on an isolated incident in 3 years and 9 months of service with no other adverse action .
6.       The Applicant contends he was not charged or convicted of any crime in a state, federal, or judicial military court.
 7.       The Applicant contends another servicemember was punished less harshly for similar misconduct .
8.       The Applicant contends his command was biased against him and discharged him on the basis of his Conscientious Object or package .

Decision

Date : 20 1 401 09    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 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 NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 128 ( Assault ) . Based on the offense 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, submit a written statement, and request a General Court-Mar tial Convening Authority review .

: (Decisional) ( ) . The Applicant contends he was found guilty on the basis of hearsay evidence that would not have held up in a court-martial. The Applicant also contends he was not trying to escape the demands of Naval Justice as evidenced by the fact that he did not appeal his nonjudicial punishment. The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible , and the Applicant’s contention the NJP was based on hearsay and presumable evidence has no merit. The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. Additionally, t he record of evidence clearly shows the Applicant waived his right to trial by court-martial . If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial , he would have had the opportunity to mount a defense against the charges and contest the hearsay evidence he has called into question . Further, when presented t he opportunity to appeal the punishment at his nonjudicial punishment , the A pplicant chose not to do so. Relief denied.





: (Decisional) ( ) . The Applicant contends his discharge was unduly harsh , because he provided evidence of repentance for having broken his ethic of nonviolence and chose to suffer penalties imposed at nonjudicial punishment. A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. After his finding of guilt at NJP, t he Applicant was notified of separation due to commission of a serious offense as evidenced by the assault he committed against a civilian woman , thereby reflecting negatively on the Navy and himself. The Applicant’s repentance does not exonerate him from the misconduct. The NDRB determined his separation proceedings were warranted, proper, and equitable. Relief denied.
4 : (Decisional) ( ) . The Applicant contends his c ommanding o fficer would have reversed the discharge had he renounced this ethic of nonviolence and submission of a Conscientious Objector application. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his c ommanding o fficer would have reversed the discharge had he renounced this ethic of nonviolence and submission of a Conscientious Objector application. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The record contained no evidence of any wrongdoing by the Applicant’s c ommanding o fficer or anyone else in the discharge process.

The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. 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. Based on the Applicant’s record of service, 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 warrented . Relief denied.
5 : (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 3 years and 9 months of service with no other adverse action . The Applicant states his character is demonstrated by promotion to Petty Officer Third Class and numerous awards and accolades to include a Good Conduct Medal. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warrante d. Relief denied.
6 : (Decisional) ( ) . The Applicant contends he was not charged or convicted of any crime in a state, federal, or judicial military court . Per 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 , a servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The Applicant was found guilty of violating UCMJ Article 128 (Assault) at NJP based upon a preponderance of the evidence. Per Appendix 12 of the Manual for Courts-Martial, Article 128 is considered a serious offense that could have resulted, at a maximum, in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The lack of charges or convictions for the assault does not mean he did not commit the misconduct. The Applicant’s commanding officer found by a preponderance of the evidence that he committed assault. Subsequently, he determined the Applicant was no longer fit to serve in the Navy and initiated administrative separation proceedings. The NDRB determined his discharge was warranted, proper, and equitable. Relief denied.

7 : (Decisional) ( ) . The Applicant contends another servicemember was punished less harshly for similar misconduct. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a n Under Honorable Conditions ( General ) discharge was warranted. Relief denied.
8 : (Decisional) ( ) . The Applicant contends his command was biased against him and discharged him on the basis of his Conscientious Object or package. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly based on his beliefs . The Applicant was found guilty of four specifications of violating Article 128 and was subsequently processed for administrative separation. Per Naval Military Personnel Manual Article 1900-020, paragraph 15g, “Administrative separations for any reasons other than Conscientious Objection take precedence over separation as a conscientious objector. ” Therefore, his discharge for Misconduct (Serious Offense) would have taken precedence over a pending, or subsequent, separation request for Conscientious Objection. There is nothing in the record or the statements submitted by the Applicant to indicate his commanding officer found him guilty at NJP and subsequently initiated separation proceedings to block his Conscientious Objector request or because he was biased against the Applicant’s beliefs. The NDRB determined his discharge was proper and equitable. 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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