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NAVY | DRB | 2013_Navy | ND1301334

Original file (ND1301334.rtf) Auto-classification: Denied

ex-PNC, USN

Current Discharge and Applicant’s Request

Application Received: 20130610

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)        19810331 - 19810615     Active:          19810616 - 19840403
                                             19840404 - 19890227
                                             19890228 - 19950214
Period of Service Under Review:
Date of Current Enlistment: 19950215     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980623      Highest Rank/Rate: PNC
Length of Service: Year(s) Month(s) 09 D ay(s)
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 4.00
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (4) (4) LoC (2) JSAM AFSM
Periods of UA :

NJP :     S CM :    CC:

SPCM:

- 19970807 :      Article (False official statements , 3 specifications )
         Specification 1: Faxing a false NAVPERS 1307/7 request to PNCS
         Specification 2: Make a false statement to PNCS
         Specification 3: Make a false statement to LT
         Sentence: 31 DAYS
         C onvening Authority Action (19980203) : The sentence is approved and will be executed .

Retention Warning Counseling:

- 19961106 :      For disrespect to a commissioned officer

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 contends an Honorable discharge is appropriate in light of his administrative separation board’s recommendation to retain him in service.
2.       The Applicant contends his post-service record , in conjunction with his active duty record , warrants an upgrade to Honorable .

Decision

Date: 20 1 4 0324             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. 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 in his current enlistment included NAV PERS 1070/613 (Page 13) warning and for of the UCMJ: Article 107 ( False official statements , 3 specifications ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant’s administrative board found that the preponderance of the evidence supported the alleged misconduct by a vote of 3-0 and voted for retention by a vote of 2-1. The Separation Authority, however, did not agree with the board’s recommendation to retain the Applicant and ordered him to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense).

: (Decisional) ( ) . The Applicant contends an Honorable discharge is appropriate in light of his administrative separation board’s recommenda tion to retain him in service. The Applicant received Honorable discharges for his first three enlistments from June 1981 to February 1995. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, he received a retention warning and was found guilty at a Special Court-Martial of three violations of UCMJ Article 107. When notified of administrative discharge processing, he elected to appear before an administrative separation board, which found that the preponderance of the evidence support ed misconduct but recommended retention. The Separation Authority did not concur with the retention recommendation and ordered him to be discharged. The administrative separation board ’s recommendation for retention is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence and also makes the final determination as to whether a servicemember should be retained or separated . There is no provisional guarantee that a servicemember will receive anything that a n administrative board recommends. The NDRB determined the Applicant’s administrative separation processing was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service record , in conjunction with his active duty record , warrants an upgrade to Honorable. The Applicant state d his character is demonstrated by promotion to Chief Petty Officer and a superior record of service including four Good Conduct Medal s, two Letters of Commendation, a Joint Service Achievement Medal, a Navy and Marine Corps Commendation Medal, a Navy and Marine Corps Achievement Medal, the Navy “E” r ibbon, Enlisted S urface and A viation W arfare S pecialist designations, and other recognition and accolades for superior performance of duty . 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. Additionally, 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 significant post- service documentation , including a personal statement, evidence of financial stability and continuous employment, documentation showing he has earned a doctorate in education, documentation showing he has served as the chair of a board to evaluate technical proposals, two performance incentive awards for employees exceeding expectations, eight published articles in professional newsletters and journals, numerous articles in professional newsletters and journals presenting him with performance accolades, and 21 letters of appreciation and thanks for superior performance and support. C ompletion 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. After a complete review of the in-service and post-service documentation and testimony at the hearing, the NDRB determined the characterization of service received was appropriate considering the length of service and UCMJ violations. 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 combined with his post - service achievements , the NDRB determined by a vote of 3-2 that the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty in his current enlistment outweighed the positive aspects of his service record, 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 29 March 2000,
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 107.

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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NAVY | DRB | 2013_Navy | ND1301334

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