ex-ITSN, USN

Current Discharge and Applicant’s Request

Application Received: 20141021
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20010816 - 20010923  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20010924	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050823	Highest Rank/Rate:  IT3
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  76
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  2.25 (4)	OTA:  2.42

Awards and Decorations (per DD 214):	   

Period of TL:  20050616-20050702, 17 days

NJP:  

- 20041017:	Details NFIR 
	[Extracted from NAVPERS 1070/604]

- 20050801:	Article  (Failure to obey order or regulation) 2 specifications
	Awarded:     Suspended:  

	[Per the Applicant’s DD Form 293 he was the subject of four total nonjudicial punishments.  No dates were provided.  He stated the first was for stealing a laptop computer; the second was for dropping a radio overboard; the third resulted from his wife’s allegation that he was not using his leave to attend his grandfather’s funeral but was instead spending that time with another female; and his fourth and final nonjudicial punishment was for disobeying a lawful order by logging onto a computer after being told not to.]

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

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 11, effective 26 April 2005 until 19 May 2008, 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 seeks an upgrade in order to qualify for G. I. Bill benefits.
2.	The Applicant contends that his narrative reason for separation is improper because the four incidents for which he was sent to nonjudicial punishment contained elements of mitigation and misunderstanding which illustrate that he did not demonstrate a true pattern of misconduct.
3.	The Applicant contends his in-service qualifications and performance warrants an upgrade to Honorable as evidenced by his awards, extra duties, and evaluations.
4.	The Applicant contends his discharge should be categorized as Honorable because he served all but a month and a half of his service obligation with a total of three years, ten months, and 14 days of active service.
5.	The Applicant contends he rates an Honorable service characterization due to his service in support of Operations IRAQI FREEDOM and ENDURING FREEDOM.
6.	The Applicant contends that youth and immaturity were contributing factors in his misconduct.

Decision

Date:  20150129		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 was incomplete but included   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, two specifications).  Per the Applicant’s DD Form 293 he was the subject of four total nonjudicial punishments.  No dates were provided.  He stated the first was for stealing a laptop computer; the second was for dropping a radio overboard; the third resulted from his wife’s allegation that he was not using his leave to attend his grandfather’s funeral but was instead spending that time with another female; and his fourth and final nonjudicial punishment was for disobeying a lawful order by logging onto a computer after being told not to.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not 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 an upgrade in order to qualify for G. I. Bill benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  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.

:  (Decisional) ()  .  The Applicant contends that his narrative reason for separation is improper because the four incidents for which he was sent to nonjudicial punishment for contained elements of mitigation and misunderstanding which illustrate that he did not demonstrate a true pattern of misconduct.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial by accepting nonjudicial punishment.  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 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 with respect to the Applicant’s guilt at four nonjudicial punishments.

The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant’s record of service contained record of two nonjudicial punishments and the Applicant detailed four nonjudicial punishments in his application to this board.  Applicable service references allow for the separation of a service member if, during the course of the current enlistment, the member has two or more nonjudical punishments, court-martials, civilian convictions, or any combination thereof; three or more unauthorized absences, each more than three days, but less than 30 days in duration; a set pattern of failure to pay just debts; a set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders, decrees, or judgments concerning dependent support; or violated a NAVPERS 1070/613 (Rev. 10-81), Administrative Remarks Counseling/Warning (MILPERSMAN 1910-204) specifically addressing the non-support.  The Applicant’s four nonjudicial punishments clearly demonstrate that separation under the narrative reason of PATTERN OF MISCONDUCT was appropriate.  Furthermore, as documented in his official service record, the NDRB observed the Applicant formally requested his official service record with the statement “No CD’s Please – Paper Documents Only, Per Prison Policies” with a mailing address in a Virginia Correctional Center.  The NDRB found that this documentary evidence indicates that the Applicant’s in-service conduct was not an aberration.  The NDRB found this issue to be without merit.  Relief denied.

 & 4:  (Decisional) ()  .  The Applicant contends his in-service qualifications and performance warrants an upgrade to Honorable as evidenced by his awards, extra duties, and evaluations.  The Applicant further contends his discharge should be categorized as Honorable because he served all but a month and a half of his service obligation with a total of three years, ten months, and 14 days of active service.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  The NDRB noted the Applicant’s record of service annotates a period of time lost between 16 June and 2 July 2005 thereby demonstrating that he did not have continuous honorable service as he claimed.  If the period of time lost had been due to an acceptable reason the Applicant would have had three years and eleven months of service at discharge.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends he rates an HONORABLE service characterization due to his service in support of Operations IRAQI FREEDOM and ENDURING FREEDOM.  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 on the Applicant’s record of service, 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.

6:  (Decisional) ()  .  The Applicant contends that youth and immaturity were contributing factors in his misconduct.  While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.  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 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