ex-PR2, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
         Separation Code change to: NBD or KBK
Re-enlistment Code change to: RE-2 or RE-1
         Separation Authority change to: MILPERSMAN1830-040      

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       19910627 - 19920615 ELS         Active:  USNR: 19930119 - 19970517 NFIR
Inactive:        USNR (DEP)       19920617 - 19930118 COG USNR: 19970518 - 20010517 NFIR
USNR: 20010518 - 20040722 NFIR
USNR: 20040723 - 20090822 NFIR
                
Period of Service Under Review:

Date of Current Enlistment: 20090823     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20120619      Highest Rank/Rate: PR1
Length of Service: Year(s) Month(s) 28 Day(s)
Education Level: 12      AFQT: 63
Evaluation Marks:        Performance: 3 (3)       Behavior: 3 (3)  OTA: 3.00

Awards and Decorations (per DD 214):     Rifle Pistol (8) (5) (8) (2) (2) AFRM (W/BRONZE HOUR GLASS/MOBILIZED)

Period of UA: NONE

NJP: 1

- 20101220:      Article (Failure to obey order, regulation)
         Article (Drunk or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended:

SPCM:

- 20110120:      Article (False official statements) 4 specifications
         Article (Larceny) 3 specifications
         Sentence: CONF 90 days (20110120-20110401, 71 days) and $12,000 fine.
         CA: The sentence approved and will be executed

CIVIL ARREST: 1

- 20101029:      Charges: DUI. Dismissed on 20111003.

CC: NONE

Retention Warning Counseling:

- 20101220:      For violation of UCMJ Art 92 and 111.

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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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 107,121.

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

Applicant’s Issues

1. The Applicant contends that he was given NJP improperly.
2. The Applicant contends that the administrative separation process was improper and inequitable that he should have been
retained as recommended by the Administrative Separation Board.

Decision

Date: 20150212            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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 92 (Failure to obey order, regulation), Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel); and for of the UCMJ: Article 107 (False official statements, 4 specifications), Article 121 (Larceny, 3 specifications); and one civil arrest for driving under the influence. 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 Board found by a vote of 3 to 0 that the preponderance of the evidence supported misconduct; the Administrative Board recommended, by a vote of 3 to 0 retention. The Separating Authority(SA) did not accept the Administrative Board’s recommendation to retain the Applicant. The SA directed the Applicant be separated with General(Under Honorable Conditions) discharge.

: (Decisional) () . The Applicant contends that he was given NJP improperly. The record of evidence clearly shows the Applicant accepted NJP. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted the Skagit County District Court Docket showing Dismissal of Charges. Even though the court dismissed the charges, the record of evidence clearly depicts the Applicant accepted NJP; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

: (Decisional) () . The Applicant contends that the administrative
separation process was improper and inequitable and that he should have been retained as recommended by the Administrative
Separation Board. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge
Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to
the separation process. The Applicant submitted 21 separate enclosures as supporting documents to his DD Form 293.
Following a thorough review of all the evidence in the record, the NDRB discerned no impropriety or inequity and determined
the Applicant’s discharge was proper and equitable. Relief denied.

The Applicant’s service record was not complete for the purpose of determining the period(s) of continuous honorable service.
The Applicant should consider petitioning BCNR for a determination of his periods of enlistment. The Applicant (using DD
Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their
Website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization
of service as determined by the Navy. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs
representative for more information and may request a review of service and determination of benefits from the VA.

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 MISCONDUCT (SERIOUS OFFENSE). 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