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NAVY | DRB | 2014_Navy | ND1400299
Original file (ND1400299.rtf) Auto-classification: Denied

ex-GSEFR, USN
Current Discharge and Applicant’s Request
Application Received: 20131203
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)        20070519 - 20071210     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071211     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100201      Highest Rank/Rate: GSEFN
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
 Education Level:        AFQT: 85
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.84

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20090601 :      Article ( Drunken or reckless operation of vehicle, aircraft, or vessel )
         Awarded: Suspended: [Vacated 20090907]

S CM :    CC:

SPCM:

- 20090925 :       Art icle ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 5 specifications )
         Specification 1: Having received a lawful order from GS E 3 T_, a petty officer, then known by the said O_ to be a petty officer, to get in the car, an order which it was his duty to obey, did, at or near Carlsbad, CA on or about 20090906, willfully disobey the same.
         Specification 2: On or about 20090906 was disrespectful in language toward HM1 H_, a superior petty officer, then known by the said O_ to be a superior petty officer, who was then in the execution of his office, by saying to him, “ I t’s none of your f **king business,” or words to that effect.
         Specification 3 : On or about 20090906 was disrespectful in language toward G S E 2 C_, a superior petty officer, then known by the said O_ to be a superior petty officer who was then in the execution of his office, by saying to him , “ Y ou piece of s **t,” or words to that effect.
         Specification 4 : On or about 20090906 was disrespectful in language toward GS E 3 T_, a superior petty officer, then known by the said O_ to be a superior petty officer who was then in the execution of his office, by saying to him “ Y ou are a fat piece of s **t,” or words to that effect.
         Specification 5 : On or about 20090906, was disrespectful in language toward QM2, a superior petty officer, then known by the said O_ to be a superior petty officer, who was then in the execution of his office by saying to him, “ Y ou mother f***er piece of s**t,” or words to that effect.
         Art icle ( Drunken or reckless operation of vehicle, aircraft, or vessel )
        
         Article (Assault , 2 specifications )
         Specification 1: On or about 20090906, unlawfully strike GSEFN H_, by punching the said sailor in the face with his fist.
         Specification 2: On or about 20090906, unlawfully choke GSEFN H_, by using his hands to choke the said sailor on the neck.
         Article (General Article , 5 specifications )
         Specification 1: On or about 20090906, wrongfully communicate to QM2 C_, a threat to kill the said C _ .
         Specification 2: On or about 20090906, wrongfully communicate to QM3 C_, a threat to kill GS E FN H_.
         Specification 3 : On or about 20090906, on board Marine Corps Base, Camp Pendleton, wrongfully communicate to HM1 H_, a threat to injure the said sailor, by punching him in the face.
         Specification 4 : On or about 20090906, drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces.
         Specification 5 : On or about 20090906, wrongfully and recklessly engage in conduct, to wit: driving GSMFN H_, in a motor vehicle while under the influence of alcohol, and that the accused’s conduct was likely to cause death or grievous bodily harm to the said sailor.
         Sentence : 4 months (20091020-20091216, 58 days)

Retention Warning Counseling :

- 20090601 :      For your performance and/or conduct are identified: you were found guilty at CO’s NJP for violation of UCMJ Article 111- drunken or reckless operation of a vehicle.

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

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 91 , 111, 128, and 134 .


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

Applicant’s Issues

 1.       The Applicant contends he was wronged by his commanding officer in that he was coerced to plead guilty .
2 . The Applicant contends h e suffered a lot of setbacks due to alcoholism.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 4 0612             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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel , 1 specification) , and for of the UCMJ: Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 5 specifications ) , Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel , 1 specification ), Article 128 ( Assault , 2 specifications ), and Article 134 ( General A rticle , 5 specifications ) . Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel and submit a written statement . However, per the Applicant’s DD Form 214, the Separation Code HKQ indicates the Applicant waived his right to an administrative board.

: (Decisional) ( ) . The Applicant contends he was wronged by his commanding officer in that he was coerced to plead guilty. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant is fortunate he did not receive a punitive Bad Conduct Discharge after his Special Court-Martial conviction. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he suffered a lot of setbacks due to alcoholism. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. There is also no evidence that his medical conditions mitigate his misconduct. The NDRB determined the Applicant’s personal problems or medical conditions were not mitigating factors in his misconduct. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for 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 review. The Applicant provided a personal statement and a character reference letter. T he 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. T he 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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