ex-ABHAR, 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)       20080228 - 20080427     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20080428    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20091028     Highest Rank/Rate: ABHAA
Length of Service: Year(s) Month(s) 01 Day(s)
Education Level:        AFQT: 39
Evaluation Marks:        Performance: 2.67 (3)    Behavior: 1.67 (3)      OTA: 2.50

Awards and Decorations (per DD 214):    

Periods of TL: 20090914-20090925, 12 days

NJP:

- 20090212:      Article r)
         Article
         Article
         Awarded: Suspended:

- 20090522:      Article
         Article
         Awarded: Suspended:

- 20091002:      Article
         Article
         Awarded: Suspended:


SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20090523:      For Commanding Officer’s Nonjudicial Punishment of 22 May 2009 for violation of the UCMJ, Article 117, Provoking speeches or gestures; and Article 128, Assault



Administrative Corrections to the Applicant’s DD 214

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

         “08 04 28”
         “01 06 01”
         “”

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 23, effective 20 May 2008 until 9 November 2009, 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)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.       The Applicant seeks enhanced employment opportunities.
2.       The Applicant contends his discharge was inequitable due to a lack of evidence against him and a short review of his case.
3.       The Applicant contends that his misconduct unauthorized absence was the result of a family emergency.
4.       The Applicant contends that his discharge was too harsh given the lack of evidence against him and the minor nature of the offenses.
5.       The Applicant contends that he has been punished enough for the mistakes he made as a younger man while in service.
6.       The Applicant contends that his post service life warrants consideration for an upgrade.

Decision

Date: 20150910            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 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 NAVPERS 1070/613 (Page 13) warning, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification), Article 87 (Missing movement, one specification), Article 89(Disrespect toward superior commissioned officer, one specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; one specification), Article 117 (Provoking speech or gestures, one specification), and Article 128 (Assault, two specifications); and 12 days of time lost from 14 September to 25 September 2009 that were not associated with any punishment in the record. 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 waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant seeks enhanced employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) () . The Applicant contends his discharge was inequitable due to a lack of evidence against him and a short review of his case. The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible and the Applicant’s contention the NJP was based on hearsay and presumable evidence has no merit. The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. The NDRB found the Applicant’s administrative separation was based upon his pattern of misconduct as evidenced by his three NJPs and one retention warning counseling. Additionally, when the NDRB reviewed the violations the Applicant was found guilty of, several are considered serious offenses by the UCMJ.

Additionally, the record of evidence clearly shows the Applicant waived his right to consult with legal counsel, submit written matters in mitigation, and request a General Court-Martial Convening Authority review. 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 General Court-Martial Convening Authority review, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

: (Decisional) () . The Applicant contends that his misconduct unauthorized absence was the result of a family emergency. While the Applicant may feel that his family difficulties were a contributing factor to or provide mitigation for his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. Relief denied

4: (Decisional) () . The Applicant contends that his discharge was too harsh given the lack of evidence against him and the minor nature of the offenses. 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. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed several serious offenses, displayed a clear pattern of misconduct, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

5: (Decisional) () . The Applicant contends that he has been punished enough for the mistakes he made as a younger man while in service. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.

Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. As such, the Applicant’s implication that he is being punished twice for the same misconduct is erroneous. Finally, there is no law or regulation that authorizes a discharge to be upgraded after a set period of time. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.

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. 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 narrative reason for discharge or the reenlistment code. Relief denied.

6: (Decisional) () . The Applicant contends that his post service life warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 GENERAL (UNDER HONORABLE CONDITIONS) 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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