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NAVY | DRB | 2015_Navy | ND1500566

Original file (ND1500566.rtf) Auto-classification: Denied

ex-ICFA, USN

Current Discharge and Applicant’s Request

Application Received: 20150126

Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS

Narrative Reason for Discharge: (per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Reenlistment Code: RE-4
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:     Characterization change to:      HONORABLE
         Narrative Reason change to:      NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20070626 - 20080727 COG         Active: NONE

Period of Service Under Review:

Date of Current Enlistment: 20080728    Age at Enlistment: 17
Period of Enlistment: 4 Years 24 MONTHS Extension
Date of Discharge: 20110913     Highest Rank/Rate: ICFN
Length of Service: 03 Year(s) 01 Month(s) 17 Day(s)
Education Level: 11     AFQT: 85
Evaluation Marks:        Performance: 3.5 (4)     Behavior: 2.75 (4)      OTA: 3.04

Awards and Decorations (per DD 214):     NAVY "E" NDSM GWOTSM SSDR

Periods of UA/CONF: NONE

NJP: 2

- 20091211:      Article 107 (False official statements)
         Article 109 (Property other than military property of the United States - waste, spoilage, or destruction)
         Awarded: RESTR EPD FOP Suspended: NONE

- 20110809:      Article 92 (Failure to obey order or regulation; O/A 20110530, SNM did violate a lawful general order, to wit: NAVADMIN 108/10 dated 20100325, by wrongfully using spice.)
         Awarded: RESTR RIR FOP Suspended: NONE

SCM: NONE

SPCM: NONE

CC: NONE

Retention Warning Counseling: 1

- 20091211:      For deficiencies resulting in NJP this date for Article 107 (False official statements) and Article 109 (Property other than military property of the United States - waste, spoilage, or destruction)

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 92, Failure to obey order or regulation.

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

Applicant’s Issues

1. The Applicant contends that he was improperly discharged and there was no evidence of wrongdoing.

Decision

Date: 20150325 DOCUMENTARY REVIEW Location: Washington D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (SERIOUS OFFENSE) .

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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article107 (False official statements), and Article 109 (Property other than military property of the United States - waste, spoilage, or destruction). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he was improperly discharged and there was no evidence of wrongdoing. The Applicant’s administrative separation package dated 16 August 2011 documents that the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant did request to obtain copies of the documents that were forwarded to the separation authority. The Applicant signed the administrative separation processing notice acknowledging receipt of the notice and that it was complete. In conjunction with his NJP on 09 August 2011, the Applicant signed an acknowledgement of appeal rights which provided him details regarding his right to appeal the NJP award. Prior to the NJP, the Applicant signed a suspect’s acknowledgment rights which includes the right to remain silent and consult with a lawyer. The Applicant also provided a written consent to search his cell phone, berthing, and urinalysis on 07 June 2011. Per the Drug and Alcohol Abuse report, the Applicant was implicated during an NCIS investigation and admitted to using spice during a Chief’s Standards and Conduct Board. The Applicant did not provide the NDRB any documentation to support the claim that he was improperly discharged. The NDRB determined his separation processing was proper. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found was proper and equitable at the time of discharge. 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 his 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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 | 2015_Navy | ND1500566

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