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NAVY | DRB | 2006_Navy | ND0601096

Original file (ND0601096.rtf) Auto-classification: Denied

ex-SR, USN
ND06-01096

Current Discharge and Applicant’s Request :

Application Received:                               20 060816
Reason for Separation:                              MISCONDUCT -
Character of Service:
Discharge Authority :                                MILPERSMAN 3630600
Last Duty Assignment/ Command at Discharge:       SERVICE SCHOOL COMMAND NTC GREAT LAKES IL

Applicant’s Request:
         Narrative Reason change to:                NOT APPLICABLE
         Characterization chang e to:                or general (under honorable conditions)
         Review Requested :
Representation:
         Issues (as summarized by NDRB):          1. Misconduct was due to youth.


Decision:

Date of Decision:                                            20070719
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)                                19900817-19910709
Active:                                    NONE
Period of Service Under Review :
Date of Enlistment:                                 19910710
Years Contracted :                                   ;
Date of Discharge:                                  19921222
Length of Service:
         Active:                                     01 Yrs 05 Mths 13 D ys (does not exclude lost time)
         Inactive:                                            Yrs Mths D ys
         Time Lost During This Period:             61 Days UA: 61 Days Confinement:

Education Level:
Age at this Enlistment:                                     18
AFQT:                                                 80
Highest Rate/Rank:                                   SA

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

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL

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

19920806 :        NJP for violation(s) of UCMJ:
         Article 86 : (2 specifications)
        Spec 1: On 19920724, at 0645 failed to go to Radar Phase Classroom Instruction in BLDG 520.
         Spec 2: On 19920728, at 0600, failed to go to Company Muster in BLDG 532.
         Article 92 : On 19920727, failed to obey a lawful order given by ET1 H_, to complete his assigned homework.
         Award: Forfeiture of $ 1 00.00 for 1 month, restriction and extra duty for 14 days.
         No indication of appeal in the record.

19920806:        Retention Warning: Advised of deficiency (Your failure to abide by the rules and regulations of the U.S. Navy and the UCMJ as evidenced by your nonjudicial punishment on 19920806), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920 828 :        NJP for violation(s) of UCMJ:
         Article 92 : 19920816, fail to obey order, wrongfully possessing Armed Forces Liberty Card other than own .
         Article 121 : 19920815, wrongfully appropriate Armed Forces Identification Card, property of SA R_ A. E_ .
.         Article 134: 19920816, break restriction.
         Article 86: 19920824, fail to go to 2130 hours, Duty Section Muster until 0530, hours, 19920825.
         Award: R estriction and extra duty for 14 days (suspended 6 months) , reduction to E- 1 (suspended 6 months) .
         No indication of appeal in the record.

19921001 :        NJP for violation(s) of UCMJ:
         Article 86 : ( 6 specifications) : Between 19920921 – 19920923 and 19921001, fail to go on 6 occasions.
         Article 92 : Dereliction in duty, wrongfully sleeping in class
        Award: Forfeiture of $ 1 00.00 for 1 month, restriction and extra duty for 14 days.
         No indication of appeal in the record.

1992100 2 :        Applicant to unauthorized absence.

19921201:        Applicant from unauthorized absence (60 days/surrendered).

19921203 :        NJP for violation(s) of UCMJ:
         Article 86: UA from 1500, 19921001 until 0800, 19921201.
         Article 134: Wrongfully break restriction.
         Award: Forfeiture of $400.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.
         No indication of appeal in the record.

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

None.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  ADMINISTRATIVE BOARD PROCEDURE
Date Notified :                                        19921204
Reason for Discharge :                                MISCONDUCT -
                                                      MISCONDUCT -


Least Favorable Characterization:

Date Applicant R esponded to N otification:                 19921204
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
Applicant objected to discharge          NO


Recommendation of Commanding Officer (date):     ( 19921207 )
Discharge directed by (date):                       BUPERS (19921217)
Narrative reason directed :                                   MISCONDUCT -
Characterization directed:
Date Applicant Discharged:                         19921222

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

D escription of Other Documentation:

Discussion

Decisional Issues:

Issue 1 ( ). 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. An under other than honorable conditions 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 4 nonjudicial punishment proceedings for violations of Articles 86, 92 , 121 and 134 of the UCMJ within a four month period, 60 days of which the Applicant was in an unauthorized absence/deserter status . The Board advises the Applicant that violations of Articles 86 and 92 are considered serious offenses for which a punitive discharge is authorized upon conviction at special or general court-martial. 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 service. Relief is not warranted on this issue .

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.

Minority Opinion

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 .

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 86, Absence without leave for greater than 30 days , and Article 92, Failure to obey order or regulation .

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 | ND0601096

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