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NAVY | DRB | 2013_Navy | ND1301357
Original file (ND1301357.rtf) Auto-classification: Denied

ex-LSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20130614
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)        20090205 - 20090707     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090708     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130605      Highest Rank/Rate: LSSN
Length of Service: Y ear( s ) M onth( s ) 28 D a y ( s )
 Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 2.90

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    CC:      Retention Warning Counseling :

CIVIL ARREST:

- 20130412 :       Charges: Physically control a vehicle, to wit: a passenger car, while drunk . Court date 20130610 .

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 111 .


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

Applicant’s Issues

 1.        The Applicant contends she was discharged for commission of a serious offense due to her civilian arrest for DUI, which was eventually reduced to reckless driving.
2.       The Applicant contends she refused nonjudicial punishment (NJP) and requested court-martial but was then immediately administratively separated without being able to defend herself.
 3 .       The Applicant contends she was treated more harshly than other Sailors who committed similar offenses .

Decision

Date : 20 1 3 1030             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 . 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 proprie ty. The Applicant’s record of service included a civilian arrest for DUI that was later reduced to reckless driving . Based on th is arrest, 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 submit a written statement . The Applicant was not entitl ed to appear before an administrative separation board.

: (Decisional) ( ) . The Applicant contends she was discharged for commission of a serious offense due to her civilian arrest for DUI, which was eventually reduced to reckless driving. In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge. However, such information can be and was considered by the NDRB in making a determination as to the equity and propriety of her discharge . 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 , t he commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings, or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. DUI and/or reckless driving is equivalent to Uniform Code of Military Justice Article 111 (Drunk or reckless operation of a vehicle, aircraft, or vessel) and is considered a serious offense per Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge as the result of a Special or General Court-Martial. Her arrest served as a preponderance of the evidence that she committed the serious offense. Also, her command found out about the offense from a phone call from the Virginia Beach police and not through the self reporting of the Applicant. After a complete review of the records, the NDRB determined her discharge proceedings were warranted, proper, and equitable. Relief denied.
Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends she refused nonjudicial punishment (NJP) and requested court-martial but was then immediately administratively separated without being able to defend herself. A complete review of the records shows the Applicant was provided all applicable rights and was afforded full due process. As was her right to do, she refused NJP and requested a court-martial. There is, however, no right to a court-martial, and it was her command’s decision as to whether or not the charges would be referred to a court-martial. Her command refused to refer the charges to a court-martial, and in a separate decision, decided to initiate administrative separation procedures for Misconduct (Serious Offense). Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. The command notified the Applicant of administrative separation processing, and she elected her rights to consult with counsel and submit a written statement to the Separation Authority. Because her command only recommended her for a General (Under Honorable Conditions) characterization of service and not an Under

Other Than Honorable Conditions characterization and because she had less than six years of service, she did not have the right to appear before an administrative separation board. The Separation Authority (Commander, Carrier Strike Group 12) reviewed all of the facts of the case, including the Applicant’s statement, and determined she met the requirements for administrative separation for Misconduct (Serious Offense) and ordered that she be separated with a General (Under Honorable Conditions) characterization of service. After a complete review of the records and the Applicant’s statements, the NDRB determined her discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends she was treated more harshly than other Sailors who committed similar offenses. 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 proper , and that a General (Under Honorable Conditions) discharge 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.



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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