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NAVY | DRB | 2014_Navy | ND1400474

Original file (ND1400474.rtf) Auto-classification: Denied

ex-BMC, USN

Current Discharge and Applicant’s Request

Application Received: 20140124

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       DISCHARGED RE-1

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19901019 - 19910922     Active: 199 10923 - 19960124
                                    199 60125 - 199 80430
                                    199 80501 - 20010529
                                    20010530 - 20031215
                                    20031216 - 20081023

Period of Service Under Review:
Date of Current Enlistment: 20081024     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110902      Highest Rank/Rate: BMC
Length of Service: Year(s) Month(s) 10 D ay(s)
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 3.57

Awards and Decorations ( per DD 214):      (2) (3)

Periods of UA /C ONF :

NJP :

- 20100612 :      Article (Disrespect toward a superior commissioned officer ; did on or about 20100609, behave himself with disrespect toward a superior commissioned officer, then known by SNM to be a superior commissioned officer, by saying, “I don’t give a fxxx about what LT K _____ said. ” )
         Article (Failure to obey an order or regulation , 2 specifications )
        Specification 1: Did on or about 20100609, violate DODINST 6495.05, Sexual Assault Prevention and Response Program procedures , dated 20050623, by sexually assaulting a CTT2.
         Specification 2: Did on or about 20100609, violate DODINST 6495.05, Sexual A ssault P revention and R esponse P rogram procedures , dated 20050623, by engaging in sexual contact with an HA without her permission.
         Article (Rape , sexual assault , and other sexual misconduct , 2 s pecifications )
         Specification 1: On or about 20100609, engage in sexual contact with a CTT2, to wit: touching her breast over clothing and such sexual contact was without legal justification or lawful authorization and without the permission of CTT2.
         Specification 2: On or about 20100609, engage in sexual contact with an HA, to wit: kissing on the lips and such sexual contact was without legal justification or lawful authorization and without the permission of HA.
         Article (General Article - Disorderly conduct, drunkenness ; drunk and disorderly which was a nature to bring discredit upon the armed forces. )
         Awarded: Suspended:

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:

         “ 19 11 11 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL ( 3 ); SOUTHWEST ASIA SERVICE MEDAL; NAVY "E" RIBBON ; MERITORIOUS UNIT COMMENDATION; GOOD CONDUCT MEDAL (2); NATIONAL DEFENSE SERVICE MEDAL; GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (3); ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA ”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910923 UNTIL 081023 ”

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 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 s 89, 92, and 120 .

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

Applicant’s Issues

1. The Applicant would like his RE code changed and be reinstated or be allowed to retire .
2. The Applicant contends his discharge was in error because he was given a letter o f retention.
3 . The Applicant contends his Administrative Separation Board did not have all of the evidence and would have come to a different deci sion with all of the evidence.

Decision

Date: 20 1 4 0724 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 included 6105 counseling warnings, and for o f the Uniform Code of Military Justice (UCMJ): Article 89 ( Disrespect toward a superior commissioned officer , 1 specification ), Article 92 ( Failure to obey an order or regulation , 2 specifications ), Article 120 ( Rape, sexual assault, and other sexual misconduct, 2 Specifications), and Article 134 ( General Article – Disorderly conduct, drunkenness; drunk and disorderly which was a nature to bring discredit upon the armed forces, 1 specification). 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 exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Administrative Separation Board found by a vote of 3-0: guilty of commission of a serious offense, separation, a General (Under Honorable Conditions) discharge, and recommended transfer to the IRR.

: (Nondecisional) The Applicant would like his RE code changed and be reinstated or be allowed to retire . 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 B oard for Correction of Naval Records 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. Finally, the NDRB does not have the authority to reinstate a Sailor or authorize retirement. The Applicant can apply to the Board for Correction of Naval Records using DD Form 149 as they can grant both of these actions.

: (Decisional) ( ) . The Applicant contends his discharge to be in error because he was given a letter of retention. Naval Military Personnel Manual (MILPERSMAN) Article 1910-233 states that “Certain bases for administrative separation (ADSEP) are so detrimental to good order and discipline, mission readiness, and appropriate standards of performance and conduct that processing for ADSEP is mandatory. ” Violation of UCMJ Article 120 is one that requires mandatory processing. Further, MILPERSMAN Article 1910-233 goes on to state , “NAVPERS 1070/613 Administrative Remarks counseling and warning that states the member is being retained, and was issued after an incident which require s mandatory processing or for which processing is directed by NAVPERSCOM, is considered to be invalid and will not preclude ADSEP processing.” Additionally, NAVADMIN 210/10 does not apply to the Applicant and was not used as the basis for his separation after his incident. As stated earlier, he was processed for administrative separation due to violating UCMJ Article 120, which requires mandatory processing be initiated. The NDRB determined the Applicant’s command acted properly in initiating separation proceedings for Misconduct after he was found guilty at NJP . Relief denied.

: (Decisional) ( ) . The Applicant contends his Administrative Separation Board did not have all of the evidence and would have come to a different deci sion with all of the evidence. The Applicant submitted to the NDRB a letter from CTT2 M______ dated 01 October 10. 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. The record shows that there were letter s from both HA A______ and CTT2 M______ submitted as evidence at his Administrative Separation Board. If there were other mitigating factors, it was the responsibility of the Applicant and his counsel to ensure that they were heard during the board.

In the two letters supporting retention of the Applicant from Commanding Officer, USS OSCAR AUSTIN (DDG 79) , dated 20101004 , and Commander, Carrier Strike Group TEN, dated 20101113, neither one of them stated that they believed new evidence supported the belief that the misconduct did not occur. They only spoke of the 19 years of Honorable service as a factor of mitigation to retain the member until retirement. In a message dated 20110830 from CHNAVPERS WASHINGTON DC, the command was directed to discharge the Applicant Under Honorable Conditions (General). A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Honorable Conditions (General) 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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NAVY | DRB | 2014_Navy | ND1400474

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