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NAVY | DRB | 2006_Navy | ND0601132

Original file (ND0601132.rtf) Auto-classification: Denied

, ex-DKSA, USN
ND06-01132

Current Discharge and Applicant’s Request:

Application Received:                               20 060905
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 3630300
Last Duty Assignment/ Command at Discharge:       USS EMORY S . LAND ( AS 39 )

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:
Issues (as summarized by NDRB):                   1. One isolated incident in 68 months of service.


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 Pattern of Misconduct.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19940525-19940614
Active:                                              19940615-19971211 HON    03 YRS 05 MOS 27 DAYS
Period of Service Under Review :
Date of Enlistment:                                 19971212
Years Contracted :
Date of Discharge:                                  20000218
Length of Service:                                  02 Yrs 02 Mos 06 Days
Time Lost During This Period:                      UNABLE TO DETERMINE
Days Unauthorized Absence:                         UNABLE TO DETERMINE
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 87
Highest Rate/Rank:                                   DK3

Performance Evaluation Averages (number of marks):
Performance :                                         3.9 (2)
Behavior :                                            3.8 (2)
OTA :                                                   3.9 (2)

Awards and Decorations (as listed on the DD Form 214): OVERSEAS SERVICE RIBBON, 2 NAVY ACHIEVEMENT MEDAL, NAVY " E " RIBBON, ARMED FORCES SERVICE MEDAL, ARMED FORCES EXPEDTIONARY MEDAL, NAVY UNIT COMMENDATION, FLAG LETTER OF COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON, 1 ^ST GOOD CONDUCT 970614, NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION

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

19971212 :        Reenlisted this date for a term of 4 years.

19990901 :        NJP for violation s of UCMJ:
         Article 86: Absence from unit (from 19990723) .
         Article 87: Missing movement (on 19990726) .
         Award: Forfeiture of $667.00 for 2 months (suspended for 6 months), restriction and extra duty for 21 days, reduction in rate (suspended for 6 months).
         No indication of appeal in the record.

19990902 :        Retention Warning: Advised of deficiency ( unauthorized absence on 19990723 and missed ship’s movement on 19990726) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

200001010:       Applicant to unauthorized absence, this date.

20000116 :        Suspended r eduction in pay grade awarded at NJP on 19990831 vacated due to continued misconduct.

20000126 :        NJP for violation of UCMJ:
         Article 86: Absence from unit.
         Award: Fined $500.00 for 2 months, restriction and extra duty for 30 days, reduction to E-2.
                  No indication of appeal in the record.

20000201 :        Commanding Officer, USS EMORY S. LAND (AS 39), notified Commander Navy Personnel Command, of the Applicant’s discharge with a service characterization of general (under honorable conditions ) by reason of misconduct due to a pattern of misconduct. Enclosures to this document list the administrative separation notification procedure dated 20000127, court memorandum of 20000116 and 20000126.

20000218:        DD-214 issued, Applicant discharged with a service characterization of general (under honorable conditions by reason of misconduct due to a pattern of misconduct

Elements of Discharge: [INVOLUNTARY]

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
Obtain Copies                              NOT FOUND IN RECORD
Submit Statement(s) (date)                          NOT FOUND IN RECORD
GCMCA Review

Recommendation of Commanding Officer (date):
Separation Authority (date):      COMMANDING OFFICER, USS EMORY S . LAND ( AS 39 ) ( 20000201 )
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         20000218

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

Decisional Issues:

Issue 1 (equity) (one isolated incident in 68 months of service): The Applicant states his discharge was based on one isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. The Applicant’s enlistment under review was marred by two nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence) and 87 (missing ships movement) as well as a retention warning, which forms the basis of the “ pattern of misconduct ” reason for discharge. Though the discharge package is incomplete , based on the Commanding Officer’s letter to Commander Naval Personnel it appears as though the Applicant was properly processed for separation in accordance with NAVPERS 15560C . Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A general under honorable conditions characterization of service 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 87 , missing ships movement

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 | ND0601132

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