ex-ADAA, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
        
Summary of Service

Prior Service:
Inactive:        USNR (DEP)       19990427 - 19990720     Active: 

Period of Service Under Review:

Date of Current Enlistment: 19990721    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20010926     Highest Rank/Rate: ADAA
Length of Service: Year(s) Month(s) 08 Day(s)
Education Level:        AFQT: 44
Evaluation Marks:        NFIR

Awards and Decorations (per DD 214):    

Periods of Lost Time per DD Form 214: 20010706 – 20010823, 49 days

NJP:

- 20001017:      Article 86 (Absence without leave) 2 specifications
         Article 92 (Failure to obey order or regulation)
         Awarded: Suspended:

- 20001023:      Details NFIR [Extracted from Awards page]

- 20010503:      Details NFIR [Extracted from Awards page]

- 20010706:      Article 86 (Absence without leave)
         Awarded: Suspended:

SCM:

- 20010510:      Article 86 (Absence without leave) 3 specifications
         Article 90 (Assaulting or willfully disobeying superior commissioned officer) 3 specifications
         Sentence:

SPCM:

CC:





Retention Warning Counseling:

- 20001017:      For violation of the UCMJ: Article 86, Specification 1: late for Line Watch Stander Duty on 20001001, Specification 2: failed to go to appointed place of duty on 20001001. Failure to obey order or regulation (Violation of the UCMJ: Article 134, was derelict in the duties of Line Hangar Watch Stander on 20001001.

- 20001023:      For violation of the UCMJ: Article 86, Specification 1: late for restriction muster at 1000 on 20001021, Specification 2: late for restriction muster at 0600 and 1000 on 20001023.

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: “SEA SERVICE DEPLOYMENT RIBBON, ARMED FORCES EXPEDITIONARY MEDAL”
         “1999 07 21”

The NDRB will recommend to the Commander, Navy Personnel Command, 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 22, effective 15 December 1998 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

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

Applicant’s Issues

1.       The Applicant contends her command’s improper handling of her reports of sexual harassment and physical assaults led to her misconduct.

Decision

Date: 20141204            Location: Washington D.C.        Representation:

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 governmental 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 NAVPERS 1070/613 (Page 13) warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications) and Article 92 (Failure to obey order or regulation); and for of the UCMJ: Article 86 (Absence without leave, 3 specifications) and Article 90 (Assaulting or willfully disobeying superior commissioned officer, 3 specifications). However, the record was incomplete and did not annotate all of the Applicant’s misconduct. Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. However, the Applicant has a separation code of HKA which indicates she waived her administrative board.

: (Decisional) () . The Applicant contends her command’s improper handling of her reports of sexual harassment and physical assaults led to her misconduct. The Applicant submitted one witness statement in support of her contention. The NDRB is not an investigative body, and allegations of improper handling of reports of sexual harassment and physical assaults should be made to an appropriate law enforcement organization or the Naval Inspector General’s Office. However, in regards to reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB determined that the Applicant’s statements and the evidence provided do not overcome the presumption of regularity in this case. More importantly, the Applicant failed to demonstrate that she should not be held accountable for her own misconduct. Further, if the Applicant felt there were mitigating circumstances, it was her obligation to contest the charges at the time they were made. During a trial or administrative separation board, she would have had the opportunity to mount a defense against the charges. Instead, the record indicates that she waived her right to trial by courts-martial and waived her right to an administrative board; thus accepting her discharge. The NDRB discerned no impropriety or inequity and the Applicant’s separation for her misconduct was appropriate. Based on the Applicant’s record of service to include four NJPs and one SCM, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. 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