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NAVY | DRB | 2006_Navy | ND0601052

Original file (ND0601052.rtf) Auto-classification: Denied

ex-RMSR, USN
ND06-01052

Current Discharge and Applicant’s Request:

Application Received:                               20 060627
         Characterization of Service:
         Reason for Discharge:                      -
         Discharge Authority:                       MILPERSMAN 3630600
         Duty Assignment/Command at Discharge:    uss carl vinson (cvn 70)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1 . Applicant claims the Navy granted him a waiver to reenter service.
2 . Was not provided representation at Captains m ast.
                                                      3 . Discharge should be upgraded based on passage of time.
                                                      4. Applicant is requesting an RE code change

Decision:

Date of Decision:                                            20 070706
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 Reason for Discharge shall - .

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                19880930 - 19890625
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 198 9 0626
Years Contracted :                                   ;
Date of Discharge:                                  19911120
Length of Service:                                  02 Yrs 04 Mos 25 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:
Days Unauthorized Absence:                         28
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 48
Highest Rate/Rank:                                   RMSN

Performance Evaluation Averages (number of marks):
Performance :                                         2.5 (2)
Behavior :                                            2.5 (2)
OTA :                                                   2.50
Extracted from:
Applicant’s Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON; ARMED FORCES EXPEDITIONARY MEDAL

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

19891208 :        NJP for violation(s) of UCMJ:
         Article 121 : On or about 19891121 did wrongfully steal a wallet containing $25.00 case.
         Award: Forfeiture of $ 1 00 for 1 month, restriction and extra duty for 7 days.
         No indication of appeal in the record.

19891208:        Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 121: Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910305 :        NJP for violation(s) of UCMJ:
         Article 86 : Unauthorized absence from appointed place of duty from at or about 2030, 19910203 until 0715, 1991Feb03.
         Award: Forfeiture of $ 5 0 for 1 month, restriction and extra duty for 5 days.
         No indication of appeal in the record.

19910307:        Retention Warning: Advised of deficiency (Your conduct has been unsatisfactory. You received CO’s NJP on 19910305 for violation of Article(s) 86, UCMJ. You were counseled by the Commanding Officer regarding your deficiencies. Such conduct is prejudicial to good order and discipline and will not be tolerated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910618 :        NJP for violation(s) of UCMJ:
         Article 86 : Unauthorized absence from 0715, 19910517 to 2145, 19910519.
         Award: Forfeiture of $ 2 00 for 1 month, restriction and extra duty for 20 days.
         No indication of appeal in the record.

19911001 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence from 0715, 19910916 to 2000, 19910923.
         Award: Forfeiture of $ 2 00 for 2 month s , restriction and extra duty for 40 days , reduction to E-1.
         No indic ation of appeal in the record.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        19911015
Reason for Discharge

Least Favorable Characterization:
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 19911015
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Recommendation of Commanding Officer (date):     19911028
Discharge directed by (date):                       BUPERS 199111 1 2
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         19911120

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 :                            1
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               1
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 10

Total Number of Pages:                            13

D escription of Other Documentation:
Honorable Discharge Certificate from Air National Guard
Report of Separation and Record of Service (2 pages)
Specialist/Corporal Promotion Assessment Worksheet
Enlistment/Reenlistment Document
NAVPERS 1070/613, Administrative Remarks
Copy of EMT-Paramedic card, Practical Nurse card, Driver's license, PALS Provider card, BLS Instructor card, Armed
Forces Identification card, Prehospital Trauma Life Support card and ACLS Provider card
Letter from Department of the Army , Letter from applicant to 28 Signal Battalion ID

Applicant’s Issues as Summarized by the Board:
1 . Applicant claims the Navy granted him a waiver to reenter service.
2 . Was not provided representation at Captains m ast.
3 . Discharge should be upgraded based on passage of time.
4. Applicant is requesting an RE code change

Issue 4 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Issue 1 ( ). After a review of the Applicants records, no waiver for reentering service was found. Also, 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. An unfavorable RE-code is, in itself, not a bar to reenlistment. A request for waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board of Correction of Naval Records (BCNR) can make changes to reenlistment codes. Relief is not authorized.

Issue 2 ( ). The Applicant c laims he was not represented at Captain’s mast. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support his claim. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief is denied. .

Issue 3 (Equity). The discharge should be upgraded based on passage of time. There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good post service conduct. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Relief is denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9 , effective 15 Aug 91 until 4 Mar 93, Article 36 30600 , Separation of Enlisted Personnel by Reason of Misconduct - A Pattern Of Misconduct .

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.

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 121 (Larceny).

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 | ND0601052

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