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NAVY | DRB | 2006_Navy | ND0600810

Original file (ND0600810.rtf) Auto-classification: Denied

ex-FR, USN
ND06-00810

Current Discharge and Applicant’s Request:

Application Received:                               20 060509
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 1910-142
Last Duty Assignment/ Command at Discharge:       NNPTC CHARLESTON SC

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:               BEST INTEREST OF SERVICE
Review Requested:                 REQUESTED PERSONAL APPEARANCE HEARING CHANGED TO
Representation:                                              NONE
Issues (as summarized by NDRB):                   1. Officer Program
                                                      2. Post Service Education/Government service
                                                      3. Inequity based on one day of UA, CPO verbally authorized

Decision:

Date of Decision:                                            20 07071 2
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package :

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19980330-19980825
Active:                   NONE
Period of Service Under Review :
Date of Enlistment:                                 19980826
Years Contracted :                                   ;
Date of Discharge:                                  19990331
Length of Service:                                  00 Yrs 07 Mos 04 Days
Time Lost During This Period:                      1
Days Unauthorized Absence:                         1
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 96
Highest Rate/Rank:                                   FN

Performance Evaluation Averages (number of marks):
Performance :                                         NOT FOUND IN RECORD
Behavior :                                            NOT FOUND IN RECORD
OTA :                                                   NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214): NONE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990318 :        NJP for violations of UCMJ:
         Article 86 : Did on or about 19990315, without authority, absent himself from his organization, to wit: NNPTC CHARLESTON SC, and did remain so absent until on or about 19990316.
         Article 92 : Failure to obey a lawful order by wrongfully exceeding the 400 mile liberty limit on or about 19990314 to 1999031 6 .
         Award: Forfeiture of $ 250 .00 for 2 month s , restriction to NWS for 30 days , extra duty for 30 days, reduction to E- 2 .
         No indic ation of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Discharge Process :                                  NOT FOUND IN RECORD
Date Notified :                                        NOT FOUND IN RECORD
Reason for Discharge                                due to:
Least Favorable Characterization:                          NOT FOUND IN RECORD
Date Applicant R esponded to N otification:                 NOT FOUND IN RECORD
Rights E lected at N otification :
Consult with Counsel                       NOT FOUND IN RECORD
Administrative Board                       NOT FOUND IN RECORD
Obtain Copies                              NOT FOUND IN RECORD
Submit Statement(s) (date)                          NOT FOUND IN RECORD
GCMCA Review                                NOT FOUND IN RECORD

Administrative Board Date :                         NO NE

Recommendation of Commanding Officer (date):     NOT FOUND IN RECORD
Separation Authority (date):      NOT FOUND IN RECORD
Narrative reason directed :                                   NOT FOUND IN RECORD
Characterization directed:       NOT FOUND IN RECORD
Date Applicant Discharged:                         19990331

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            3
         Other Period of Service:
Related to Post-Service Period:
         Community Service :
         Education :                                           5
         Employment :
         Health /Medical :
         Character Statements:
         Criminal Records Checks:
         Additional Statements from Applicant:             2
Other Documentation      (Describe Below)                 10

Total Number of Pages:                            2 0

D escription of Other Documentation:
        Resume , Radar prints, SF 50-B, IAEA, Photo copies of IDs

Applicant’s Issues as Summarized by the Board:
The Applicant submitted the following i ssues :
1. Officer Program – Navy Flight program
2. Post Service Education/Government service
3. Inequity based on one day of UA, CPO verbally authorized

Issue 1: T he Board determined that which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:
The Applicant requested that his narrative reason for separation be change to “Best Interest of Service”. This is not a valid narrative reason. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violations of the UCMJ Articles 86 (unauthorized absence) and 92 (failure to obey and order) , thus substantiating the misconduct for which he was separated. The Applicant was separated in accordance with NAVPERS 15560C which directs the narrative reason be written as “Misconduct”. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.

Issue 2 : The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided transcripts from the University of Maryland and the University of Tennessee as well as photo copies of various identification badges as documentation of post-service accomplishments. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

Issue 3: The Applicant states his discharge was based on one isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant was found guilty of violating UCMJ Article 86 ( unauthorized absence) and UCMJ Article 9 2 ( failure to obey ). V iolation s of UCMJ Article 92 constitute the “commission of a serious offense”, the discharge basis in this case. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. 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 II , Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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 . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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 | 2006_Navy | ND0600810

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