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NAVY | DRB | 2006_Navy | ND0601056
Original file (ND0601056.rtf) Auto-classification: Denied

ex-IT3, USN
ND06-01056
Current Discharge and Applicant’s Request:

 Application Received:                               20 060814
Narrative Reason for Separation:                          
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       USS NIMITZ cvn-68

Applicant’s Request:
          Narrative Reason change to:                REQUEST CHANGED      
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             
Issues (as summarized by NDRB):                    1. GI BILL
2. NARRATIVE REASON CHANGED THOUGHT BEING
SEPARATED DUE TO ISSUES WITH CLEARANCE.


Decision:

 Date of Decision:                                            20 070712        
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)                                19990809 - 19990823
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19990824
Years Contracted :                                   ;
Date of Discharge:                                  20040430
Length of Service:                                  04 Yrs 08 Mos 07 Days Does not exclude lost time.
Time Lost During This Period:                      7
Days Unauthorized Absence:                         7
Days Confinement:                                   0      

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 58
Highest Rate/Rank:                                   IT3

Performance Evaluation Averages (number of marks):
 Performance :                                         2.8 (5)
Behavior :                                            2.2 (5)
OTA :                                                   2.79

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON; GLOBAL WAR ON TERRORISM SERVICE MEDAL; GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; NAVY "E' RIBBON



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

 20000603:        Applicant cited for speeding. [Extracted from Intent to deny Security Clearance letter.]

2000 0 918:        Applicant received summons to appear in traffic court for a citation received on 20000717. [Extracted from Intent to deny Security Clearance letter.]

20001104:        Applicant cited for following to closely. [Extracted from Intent to deny Security Clearance letter.]

 20001225:        Applicant to unauthorized absence at 1900.

 200 10101:        Applicant from unauthorized absence at 1900 (7 days/surrendered).

 20020221 :        NJP for violation(s) of UCMJ:
          Article 134 : On or about 20011219, wrongfully posses with intent to deceive, a stolen officer’s decal.
         Award: Forfeiture of $ 2 00 for 1 month, restriction and extra duty for 20 days. Forfeiture of $100, restriction and extra duty for 10 days suspended for 6 months.
         No indication of appeal in the record.

20020226:        Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 134, false or unauthorized pass offense.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
20030108 :        NJP for violation(s) of UCMJ:
         Article 86 (2 specifications):
         Specification 1: On or about 20021118, without authority, absent from his unit and did remain so absent until on or about 20021119.
          Specification 2: On or about 20021120, without authority, go from appointed place of duty.
          Article 92: On or about 20021120, fail to obey the same by wrongfully going to Tijuana, Mexico, without the permission of his chain of command.
         Article 134: On or about 20021121, disorderly.
          Award: Forfeiture of $ 2 00 for 2 month s , restriction and extra duty for 45 days , reduction to E-3. Reduction suspended for 6 months.
         No indic ation of appeal in the record.

20030820:        Commander, Naval Personnel Command advised Commanding Officer, USS Nimitz (CVN-68) of the Applicant’s failure to disclose criminal conduct and active warrants and directed the command to process member for fraudulent enlistment.

20040330:        Commanding Officer, USS Nimitz (CVN-68) notified the Applicant of his intended recommendation for discharge with the least favorable characterization of service as G eneral (under honorable conditions) by reason of Fraudulent Entry into Naval Service, Misconduct – Pattern of Misconduct, and Misconduct due to the commission of a Serious Offense.
20040330:        Applicant advised of rights and having elec ted not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

20040430:        Applicant discharged .

20040623:        Commanding Officer, USS Nimitz (CVN-68) , forwarded the Applicant’s administrative discharge package to C ommander N aval P ersonnel Command . Commanding Officer’s comments, “Petty Officer C_ is not fit for naval service. He failed to disclose previous criminal conduct and active warrants when enlisting in the Navy. DONCAF issued an intent to deny security clearance to Petty Officer C_ in July 2003. During the security clearance investigation it was reported that Petty Officer C_ had used marijuana on a weekly basis, purchased marijuana while on leave from the Navy and distributed marijuana from the trunk of his car. Petty Officer C_ also experienced several financial problems to include collections, charge off, civil judgments and past due accounts. In addition, Petty Officer C_ was punished at Commanding Officer’s Nonjudicial Punishment, held 8 January 2003, for unauthorized absence, failure to obey a lawful written order and disorderly conduct. He clearly has no regard for the Navy’s rules and regulations. Accordingly, I have separated him from the Navy with a General characterization of service under Honorable Conditions.


Medical Record Entries Related to Characterization of Service or Reason for Discharge

 20030731 :        Applicant completed Level II Substance Abuse Rehabilitation program .
        


Elements of Discharge: [INVOLUNTARY]

 Discharge Process :                                 
Date Notified :                                        20040330
Reason for Discharge                               
                                                      MISCONDUCT -
                                                      MISCONDUCT -
Least Favorable Characterization:                         
Date Applicant R esponded to N otification:                 20040330
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement                                   
GCMCA Review                               
                 
Discharge directed by (date):                       COMMANDING OFFICER, USS NIMITZ (CVN-68)
Narrative reason directed :                                   MISCONDUCT -
Characterization directed:                                 
Date Applicant Discharged:                         20040430



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:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                              1


Discussion
Issue 1 (GI Bill): This is an issue 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 2 (Narrative reason, thought being separated due to issues with clearance): When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, (unauthorized absence), 92 (failure to obey lawful written order) and 134 (wrongfully possess with intent to deceive and disorderly) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of s ervice.

In the Applicant’s case t he separation process was in strict compliance with the Naval Military Personnel Manual. In accordance with regulation, when separation processing is warranted for more than one reason the service member shall be processed for all valid causes . The Applicant was properly processed for separation by reason of fraudulent entry, misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct. T he summary of service clearly documents the Applicants violation of UCMJ Article 92 (failure to obey a lawful written order). Violations of UCMJ Article 92 constitute the “commission of a serious offense”, the discharge basis in this case. The separat ion authority determined that misconduct due to the commission of a serious offense most clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.
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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug ust 20 02 until
25 April 2005, 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 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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