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NAVY | DRB | 2006_Navy | ND0601138
Original file (ND0601138.rtf) Auto-classification: Denied

ex-MSSR, USN
ND06-01138

 Current Discharge and Applicant’s Request :

Application Received:                               20 060829
Characterization of Service:                      
Narrative Reason for Separation:                          
Discharge Authority :                                MILPERSMAN 3630600
Last Duty Assignment/ Command at Discharge:       NAVAL HOSPITAL, CAMP LEJEUNE NC

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             


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:        
(BCD only) The Board found that clemency was:  

By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall - PATTERN OF MISCONDUCT.
        


Applicant’s Issues as Summarized by the Board:
1 . Re-entry into military service.
2 . Youth and Immaturity



Summary of Service :

Prior Service:
 Inactive: USNR (DEP)                                19941118 - 19941122
Active: NONE                                         
Period of Service Under Review :
Date of Enlistment:                                 19941123
Years Contracted :                                   ;      
Date of Discharge:                                  19960614
Length of Service:                                  01 Yrs 06 Mos 22 Days Does not exclude lost time, if any.
Time Lost During This Period:                     
Days Unauthorized Absence:                         NONE
Days Confinement:                                   NONE

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 67
Highest Rate/Rank:                                   MSS A

Performance Evaluation Averages (number of marks):
 Performance :                                         N/A
Behavior :                                            N/A
OTA :                                                   N/A
Extracted from:
Applicant’s Supporting Documents Other:      

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

19950512:        Retention Warning: Advised of deficiency (Failure to obey other lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19950512 :        NJP for violations of UCMJ:
         Article 92: Failure to obey other lawful written order. 
         Award: Restriction and extra duty for 7 days.
         No indication of appeal in the record.
19951010 :        Retention Warning: Advised of deficiency ( Repeated failure to report on time to your assigned work station, the Nutrition Management Department, in spite of numerous verbal and written counseling’s. Poor attendance record extends beyond the department, as you failed to attend the TQL classes at Coastal Carolina Community College, and didn’t keep follow-up appointments scheduled in military sick call. Lack of motivation to complete tasks and to maintain a sharp military appearance.) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19951116:        Unauthorized absence from 2230, 19951116, intentions unknown.

19951117:        Surrendered onboard 19951117.
19951227:        Retention Warning: Advised of deficiency ( Continued failure to report to your work station, Nutrition Management Department, on time, despite numerous verbal and written counseling statements including previous Page 13. Failure to carry out fundamental tasks within your job scope such as not setting up food items prior to meal deadlines nor replenishing food at the work station, then having your watchcaptain find you engaged in non-work related activities such as talking on the telephone or napping in the Mens’ head. Repeated failure to report to work clean shaven and stating to your watchcaptain “what does it matter?” You show disrespect toward your chain of command, shirk responsibility, lack personal hygiene, show little attention to detail, and fail to shoulder your share of the workload.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
19960209:        NJP for violations of UCMJ:
          Article 86 (2 Specs) : Unauthorized absence
         Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $437.40 pay per 2 months , restriction and extra duty for 30 days, reduction to E-1.
         No indication of appeal in the record.
19960630:        NJP for violations of UCMJ:
          Article 86 (2 Specs) : Unauthorized absence .
         Award: Forfeiture of $427.00 pay per 2 months, restriction and extra duty for 30 days.
         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 :                                  NOT FOUND IN RECORD
Reason for Discharge             
                          
Least Favorable Characterization:                         
Record Supports Narrative Reason :                         
Date Applicant R esponded to N otification:                 NOT FOUND IN RECORD
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                         
GCMCA Review                               

Recommendation of Commanding Officer (date):    
Separation Authority (date):      NOT FOUND IN RECORD
Narrative reason directed :                                  
Characterization directed:      
Date Applicant Discharged:                19960614


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 :                                          3
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                              4

D escription of Other Documentation:
        NONE



Issue(s) 1 : T he Board determined that which can form the basis of relief for the Applicant or that the Board did 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 ( ). The Applicant contends his misconduct issues were the result of him being young and immature. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharge . In fairness to those members of the navy, commanders and separations authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. 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 3 retention warnings, 3 non-judicial punishment proceedings for violations of UCMJ Articles 86(unauthorized absence) and 92 (Failure to obey lawful order). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect 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 characterization of service.
.
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

 NONE
Pertinent Regulation/Law
A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92 (failure to obey a lawful order).


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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