ex-BU2, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:      HONORABLE
         Narrative Reason change to:      REQUESTED, BUT NOT SPECIFIED
         Reentry Code change to: RE-1

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20040527 - 20050502 COG         Active:  USN 20050503- 20100501 HON

Period of Service Under Review:

Date of Current Enlistment: 20100502    Age at Enlistment: 28
Period of Enlistment: 3 Years NO Extension
Date of Discharge: 20110901     Highest Rank/Rate: BU2
Length of Service: 01 Year(s) 04 Month(s) 0 Day(s)
Education Level: 12     AFQT: 58
Evaluation Marks:        Performance: 3 (1)       Behavior: 3 (1)         OTA: 3.4

Awards and Decorations (per DD 215):     Rifle MM Pistol SS NDSM GCM SSDR(3) NATO ACM ICM NAVY "E" (2)GWOTSM GWOTEM HSM AFSM MUC SCWS

Periods of UA/CONF: NONE

NJP: NONE                 SCM: NONE                 SPCM: NONE               

CIVIL ARREST: 1

- 20110701:      Charges: Ocean Springs MS Domestic violence and assault

CC: NFIR

Retention Warning Counseling: NONE


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error on the original DD Form 214:

         Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 050503 UNTIL 100501”

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 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 128, Assault.

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

Applicant’s Issues

1.       The Applicant contends that a legal error was made and the Separation Authority was not authorized to effect discharge because he was not a GCMCA per NAVPERSMAN 1910-708.1.e and NAVPERSMAN 1910.704.1.

2. The Applicant contends that there was an injustice because the command made no effort to impose discipline prior to the expiration of the Applicant’s enlistment, recommended him for reenlistment, did reenlist him despite the arrest for DUI, and then deployed him overseas to a combat deployment where he might have been killed or maimed, and only once he had returned from the deployment did the command undertake to impose discipline for a DUI charge that had been dismissed in civilian court and withdrawn from court martial only after an unfavorable evidentiary ruling.

Decision

Date: 20150402   DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: Civilian Counsel

By a vote of 5-0 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL) .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (SERIOUS OFFENSE) .
By a vote of 5-0 the Reenlistment Code shall remain RE-4 .

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 contained no military disciplinary actions but did contain information on two civil arrests. When notified of administrative separation processing using the notification procedure, the Applicant exercised his right to consult with a qualified counsel and waived his rights to submit a written statement and request an administrative board.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that a legal error was made and the Separation Authority(SA) was not authorized to effect discharge because he was not a General Court Martial Convening Authority (GCMCA) per NAVPERSMAN 1910-708.1.e and NAVPERSMAN 1910.704.1. Per the Applicant’s record, he was informed of the command’s intent to discharge him on 19 August 2011 using notification procedures. The Applicant exercised his right to consult with a qualified counsel and waived his right to request an administrative board. Per the DD214, the Applicant was discharged under Naval Military Personnel Manual, (NAVPERS 15560C) change 29, Article 1910-142, Separation by Reason of Misconduct - Commission of a Serious Offense. Per Article 1910-142 paragraph 4, the notification procedure is appropriate if the offense does not warrant an Other than Honorable characterization for discharge. Per Article 1910-142 paragraph 1, the SA is per MILPERSMAN 1910-704. Per MILPERSMAN 1910-704 paragraph 1( page 3), the SA for Misconduct - Commission of a Serious Offense is a Special Court Martial Convening Authority (SPCMCA) when the notification procedure is used. The Commanding Officer of the U.S. Naval Mobile Construction Battalion was a SPCMCA. In this case the characterization given was Under Honorable Conditions, therefore the SPCMCA is appropriate. The MILPERSMAN 1910-704 states that commands are advised to use the lowest SA whenever practical to reduce processing time and expenditure of government funds. The reference cited by the Applicant, MILPERSMAN 1910-708.1e does not apply since administrative board procedures were not used, and he was not given an Under Other Than Honorable characterization of service. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that there was an injustice because the command made no effort to impose discipline prior to the expiration of the Applicant’s enlistment, recommended him for reenlistment, did reenlist him despite the arrest for DUI, and then deployed him overseas to a combat deployment where he might have been killed or maimed, and only once he had returned from the deployment did the command undertake to impose discipline for a DUI charge that had been dismissed in civilian court and withdrawn from court martial only after an unfavorable evidentiary ruling. The Applicant provided a statement outlining his accomplishments and the timeline of his disciplinary actions as well as copies of his DD214, DD215, performance evaluations, legal documents, other official records, and a personal statement. The Applicant was arrested for DUI on 06 February 2010 by Gulfport MS Police Department and refused to take a BAC test at the station. The civil charges were dismissed on 09 March 2010. On 14 March 2010 the member deployed to Afghanistan. On 02 May 2010, the member reenlisted with the legal proceedings still pending. The member had been approved for reenlistment in December 2009 before the DUI incident occurred. Although the arrest occurred in a different enlistment than when NJP proceedings were initiated, the record does not indicate when the command was informed of the resolution of the civil charges.

The command initiated proceedings for NJP on 15 September 2010, but the service member refused NJP on 17 September 2010. On 21 December 2010, the command preferred charges for DUI with a BAC of over 0.08 to Special Court Martial. On 01 March 2011, the Applicant’s defense offered an alternative disposition for the charge to be disposed of at NJP. The Commanding Officer (CO) rejected the offer. On 22 April 2011, a military judge excluded the BAC from the blood test as evidence. That same day, the CO withdrew the original charges and preferred new charges without the reference to the BAC. The court martial was still pending when the Applicant was arrested on 01 July 2011 by Ocean Springs MS Police Department and charged with domestic violence and assault. The Applicant was notified of separation proceedings on 18 August 2011 for Commission of a Serious Offence based on charges for Article 128 (Assault). At that point, the command did not pursue court martial proceedings for the DUI but proceeded with an administrative separation. The record indicates that the Applicant waived his right to an administrative board and to submit a statement thus accepting the discharge. The decision to administratively separate a servicemember is made independently of the imposition of disciplinary actions. The servicemember contends he was deployed in to a combat zone in harm’s way. The reenlistment did allow the Applicant to complete an honorable period of service and earn eligibility for full veteran’s entitlements based on that enlistment. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the separation procedures for Commission of a Serious Offense based on the domestic assault. Relief Denied.

The NDRB did note an administrative error on the original DD Form 214 in that Block 18 should annotate the Applicant’s Honorable service from 03 May 2005 until 01 May 2010. The NDRB will make the appropriate recommendation to the Commander, Navy Personnel Command. The NDRB encourages the Applicant to submit his amended DD Form 214 to the U.S. Department of Veterans Affairs (VA) for a records review to determine his eligibility for post-service benefits based on his Honorable service from 03 May 2005 to 01 May 2010.

The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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 the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) 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