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NAVY | DRB | 2006_Navy | ND0601118
Original file (ND0601118.rtf) Auto-classification: Denied

ex-ADAN, USN
ND06-01118
Current Discharge and Applicant’s Request:

 Application Received:                               20 060825
Characterization of Service:                      
Narrative Reason for Separation:                          
Discharge Authority :                                MILPERSMAN 1910-142
Last Duty Assignment/ Command at Discharge:       patrol squadron four

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             
Issues (as summarized by NDRB):                    1. Employment
                                                      2. Post service – citizen, student, no law infractions in civilian life
                                                     

Decision:

 Date of Decision:                                            20 070727      
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)                                19971217 - 19980712
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19980713
Years Contracted :                                  
Date of Discharge:                                  20000908
Length of Service:                                  02 Yrs 01 Mos 26 Days
Time Lost During This Period:                     

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 72
Highest Rate/Rank:                                   AD3

Performance Evaluation Averages (number of marks):
 Performance :                                         4.0 (2)
Behavior :                                            3.0 (2)
OTA :                                                   3.54

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



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

 20000712 :        NJP for violation(s) of UCMJ:
          Article 134: On or about 20000513, AD3 did take, open, and then steal the mail belonging to AN _ .
         Article 121 : On or about 20000513, AD3 did take the property belonging to AN _ .
         Award: Forfeiture of $ 432 .00 for 2 month s , restriction for 60 days , reduction to E- 3.
         No indic ation of appeal in the record.

2000 0712 :        Applicant notified of intended recommendation for discharge with the least favorable characterization of service as u nder other than honorable conditions by reason of misconduct due to the commission of a serious offense (larceny of $432 and taking, opening, stealing and destroying mail).

2000 0719 :        Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

 2000 0826 :        An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to t h e commission of a serious offense , that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions) characterization of service .

2000 0908:        Applicant discharged for misconduct due to the commission of a serious offense with a service characterization of general (under honorable conditions).

20001115 :        Commanding Officer, Patrol Squadron Four , advised Commander, Naval Personnel of the Applicant’s discharge .

Elements of Discharge: [INVOLUNTARY]

 Discharge Process :                                 
Date Notified :                                        20000719
Reason for Discharge                                due to:
Least Favorable Characterization:                         
Date Applicant R esponded to N otification:                 20000719
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               
GCMCA Review                               

Administrative Board Date :                         20000826
Findings, by preponderance of the evidence:               By due to .
                                                       By separation warranted.
         Recommendation on Separation:             By      
Recommendation on Characterization:               By
Recommendation of Commanding Officer (date):    
Separation Authority (date):                        COMMANDING OFFICER, PATROL SQUADRON FOUR
Narrative reason directed :                                  
Characterization directed:      
Date Applicant Discharged:                         20000908


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 :                              2
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          1
         Health /Medical :                                       0
         Character Statements:                               1
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 1

Total Number of Pages:                              6


Discussion

 Issue 1 (employment) : 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 2 (post service – citizen, student, no law infractions in civilian life): The NDRB is authorized to consider post-service factors in the recharacterization 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 provid ed one letter of recommendation, one statement of employment and his naturalization certificate as well as statements of his changed personal behavior and enrollment in college as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the Applicant’s characterization of sesrvice .

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), Change 30, dated 7 Nov 00, effective 30 Aug ust 20 00 until
24 Jan uary 20 01, 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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