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NAVY | DRB | 2013_Navy | ND1301886

Original file (ND1301886.rtf) Auto-classification: Denied

ex-EO3, USN

Current Discharge and Applicant’s Request

Application Received: 20130919

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)        20050722 - 20050728     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050729     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100223      Highest Rank/Rate: EO3
Length of Service: Year(s) Month(s) 26 D ay(s)
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 2.7 ( 6 )        OTA: 2.99

Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA /C ONF :

NJP :

- 20070308 :      Article (Drunken or reckless driving)
         Awarded: Suspended: (Frocking removed for 6 months)

S CM :    SPCM:    CC:      Retention Warning Counseling:

CIVIL ARREST:

- 20091219 :      Charges: Violation of 23152 (a), DUI of Alcohol or Drugs and violation of 23152 (b), D riving with a 0.08% or higher Blood Alcohol Content

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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 .

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

Applicant’s Issues

1.       The Applicant would like changes made to Blocks 1 3, 14, and 19a o n his DD Form 214 .
2.       The Applicant contends the Department of Veterans Affairs (VA) has separated his service into two periods and has granted him health care, education, and disability benefits.
3 .       The Applicant contends the Navy approved his early-out request with an Honorable discharge.
4.       The Applicant would like his 4 years, 6 months, and 25 days of service separated into two discharges.

Decision

Date: 20 1 4 0410             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. 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 propriety. The Applicant’s record of service included nonjudicial punishment (NJP) f or o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken or reckless driving ) and civilian arrest for driving under the influence of alcohol or drugs. Additionally, the Applicant’s command referred a charge of violating UCMJ Article 112a (Wrongful use, possession, etc., of controlled substances , cocaine) to a Special Court-Martial. Facing the possibility of a punitive discharge (i.e., Bad Conduct), confinement, reduction in rank to E-1, and a fine, the Applicant submitted his request for separation in lieu of trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. The Navy accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Nondecisional) The Applicant would like changes made to Blocks 1 3, 14, and 19a o n his DD Form 214 . The NDRB is only authorized to review the propriety and equity of a discharge and not make other changes to a DD Form 214. The Applicant can apply to the Board for Correction of Naval Records using DD Form 149 to request the changes.

: ( Nond ecisional) The Applicant contends the VA has separated his service into two periods and has granted him health care, education, and disability benefits. The NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.

Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends the Navy approved his early-out request with an Honorable discharge. On 30 April 2009, the Applicant submitted a request to Commander, Navy Personnel Command to be discharged honorably before the end of his active obligated service under a Navy Personnel Command program to release Sailors early from their enlistments. Commander, Navy Personnel Command approved this request and ordered the Applicant to be discharged honorably on 28 December 2009. However, before the Applicant reached this date, he committed misconduct that included a civil arrest for DUI and the wrongful use of cocaine. The early-out approval was cancelled after the Applicant had charges referred to a Special Court-Martial. The approval of his subsequent request to separate in lieu of trial by a Special Court-Martial resulted in his proper discharge Under Other Than Honorable Conditions. Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant would like his 4 years, 6 months, and 25 days of service separated into two discharges. When the Applicant enlisted in the Navy in July 2005 it was for a 4-year enlistment. On 30 January 2008, he signed a 13-month extension to his original enlistment, thus bringing the end of his active obligated service to 28 August 2010. The Navy subsequently approved his early-out request and readjusted his end of service time to 28 December 2009. Serious misconduct by the Applicant, however, voided the early-out approval, and he was properly discharged Under Other Than Honorable Conditions on 23 February 2010. Although the Applicant had served h is original four-year contract, characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected w ith the consent of the member. The Applicant did not have two separate periods of service; he had only one and that period is characterized as Under Other Than Honorable Conditions. No changes to reflect two periods of service will be made to the Applicant’s DD Form 214 because none are warranted. His 4 years, 6 months, and 25 days of service were completed Under Other Than Honorable Conditions. The VA erred in separating the Applicant’s service into two periods. This decisional document will become part of the Applicant’s official records to reaffirm one period of Under Other Than Honorable Conditions service and may result in the VA conducting a complete reevaluation of the Applicant’s benefits, with the possibility that all benefits, to include health care, education, and disability, may be rescinded. 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 T herefore, 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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NAVY | DRB | 2013_Navy | ND1301886

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