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NAVY | DRB | 2013_Navy | ND1301589
Original file (ND1301589.rtf) Auto-classification: Denied

ex-MASA, USN
Current Discharge and Applicant’s Request
Application Received: 20130717
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)        20080515 - 20081215     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110722      Highest Rank/Rate: MASN
Length of Service: Y ear( s ) M onth( s ) 07 D a y ( s )
 Education Level:        AFQT: 57
Evaluation M arks:         Performance: 2.8 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 2.75

Awards and Decorations ( per DD 214):      Rifle Pistol FLoC LoA

Periods of C ONF :

NJP :

- 20091001 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended: [Extracted from Report and Disposition of Offense(s) dated 20110513]

- 20110610 :      Article (Assaulting or willfully disobeying superior commissioned officer)
         Awarded : Susp ended:

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; GLOBAL WAR ON TERRORISM SERVICE MEDAL; FLAG LETTER OF COMMENDATION; NAVY PISTOL SHARPSHOOTER MEDAL ; NAVY RIFLE MARKSMAN RIBBON; LETTER OF APPRECIATION ”

The recommended change removes the Good Conduct Medal from his DD Form 214. To be awarded a Good Conduct Medal, one must serve for three consecutive years without misconduct. The Applicant served for 2 years and 7 months and was found guilty of UCMJ violations at two NJPs during that time . 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 29, effective 10 November 2009 until 17 August 2011, 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 90 and 111 .



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

Applicant’s Issues

 1.       The Applicant requests an upgrade to enhance employment opportunities.
2 .        The Applicant contends the misconduct that led to his discharge was the subject of an acquittal , or action equal to an acquittal, in civilian court .
3 .       The Applicant contends his administrative separation processing notification failed to properly notify him of the basis for discharge.
4 .        The Applicant contends his administrative separation and Nonjudicial Punishment (N JP ) amount to double jeopardy.
 5 .       The Applicant contend s his post-servi ce conduct warrants an upgrade.

Decision

Date : 20140312             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 90 (Assaulting or willfully disobeying superior commissioned officer) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel) . Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

Issue 1: (Nondecisional) The Applicant requests an upgrade to improve employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends the misconduct that led to his discharge was the subject of an acquittal, or action equal to an acquittal, in civilian court. On 4 April 2011, the Applicant was arrested by civilian authorities and charged with domestic battery. On 6 April 2011, his command issued a Military Protective Order (MPO) through which he was ordered to stay away from his wife. This MPO was extended on two subsequent occasions to 7 June 2011. On 10 June 2011, the Applicant’s commanding officer found him guilty of violating UCMJ Article 90 ( Assaulting or willfully disobeying superior commissioned officer) based on the Applicant’s written admission that he violated the MPO on numerous occasions between 10 May 2011 and 24 May 2011. Subsequent to his finding of guilt at NJP, his command initiated administrative separation processing for Misconduct (Serious Offense), and the Applicant elected, in writing on 14 June 2011, his rights to consult with qualified counsel, to submit a written statement to the Separation Authority, and to have the General Courts-Martial Convening Authority (GCMCA) review the propriety of his discharge. The Separation Authority determined the basis of Misconduct (Serious Offense) existed and ordered the Applicant to be discharged Under Honorable Conditions (General), which occurred on 22 July 2011. T he Applicant provided documents that show his civilian charge for domestic battery was d ismissed on 25 August 2011. The Applicant, however, was not discharged for violating UCMJ Article 128 (Assault) or on the basis of Misconduct (Civil Conviction) but was discharged based on his violation of UCMJ Article 90 when he violated the MPO on numerous occasions by his own admission. After a full review of the records and the documentation and arguments submitted by the Applicant, the NDRB determined t he Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so. The Applicant was found guilty at NJP for violation of Article 90 , which warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial and thus meets the requirement for administrative separation due to Misconduct (Serious Offense) per Naval Military Personnel Manual Article 1910-142. Relief denied.

: (Decisional) ( ) . The Applicant contends his administrative separation processing notification failed to properly notify him of the basis for discharge. On 10 June 2011, the Applicant’s command notified him of administrative separation processing for “Separation by reason of misconduct - commission of a serious offense as evidenced by the Military Protective Order of 13 May 2011 and Jacksonville Sheriff’s Office report of 24 May 2011.” The NDRB determined he was properly notified of administrative separation processing for Misconduct (Serious Offense) based upon his finding of guilt at NJP on 10 June 2011 for violating UCMJ Article 90 based on the Applicant’s admission to violating the MPO on numerous occasions between 10 May 2011 and 24 May 2011. In addition, paragraphs 2 and 6 of the Applicant’s 8 July 2011 letter to the GCMCA clearly references his violation of the MPO and his NJP conviction for violating UCMJ Article 90. The NDRB determined the Applicant was properly notified of administrative separation processing, and his discharge was proper. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his administrative separation and NJP amount to double jeopardy. The Applicant further references several court cases to demonstrate legal precedence , however, the Applicant does conclude “that the law in this area is in flux” and references a 9 th Circuit Court decision that held a discharge based on military criminal charges did not constitute double jeopardy. Adm inistrative 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 is not considered a form of punishment. As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous and is not in violation of the Constitution’s Fifth Amendment . The NDRB determined his discharge proceedings were proper. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants an upgrade. 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 re view. The Applicant provided a personal statement, a statement from his ex-wife concerning the incident of 4 April 2011, evidence of the hiring process with the sheriff’s department , dismissal of the domestic battery charge, and four character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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