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NAVY | DRB | 2006_Navy | ND0601148

Original file (ND0601148.rtf) Auto-classification: Denied

ex-SMSR, USN
ND06-01148

Current Discharge and Applicant’s Request :

Application Received:                               20 060829
         Characterization of Service:
         Reason for Discharge :                      -
         Discharge Authority :                       MILPERSMAN 3630600
         Duty Assignment/ Command at Discharge:    USS BUNKER HILL CG-52

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:               CONVENIENCE OF THE GOVERNMENT
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1. Quality of Service - Equity
                                                      2. Post Service - Equity
                                                      3. Youth and Immaturity - Equity


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 Reason for Discharge shall - PATTERN OF MISCONDUCT .

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                19891003 – 19900624
Active:

Period of Service Under Review :
Date of Enlistment:                                 19900625
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19930402
Length of Service
         Active:                                     0 2 Yrs 0 9 M o s 28 D ays ( d oes not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 40
Highest Rate/Rank:                                   SMSA

Performance Evaluation Averages (number of marks):
                                    Performance : 3.7 ( 2 ) Behavior : 3.5 ( 2 ) OTA : 3.7

Awards and Decorations (as listed on the DD Form 214): SOUTHWEST ASIA SERVICE MEDAL W/3 STARS, NAVY UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, KUWAIT LIBERATION MEDAL, COMBAT ACTION RIBBON

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

19891012:        Applicant acknowledged Navy’s Drug and Alcohol Abuse Statement of Understanding.

19900626:        Applicant briefed on Navy's policy of drug and alcohol abuse.

19901111:        Applicant briefed on Navy's policy of drug and alcohol abuse.

19911009:        Retention Warning: Advised of deficiency (Alcohol abuse and returning to the ship intoxicated. You had to be helped to your rack and a drunk watch was assigned), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920106 :        NJP for violation(s) of UCMJ:
         Article 128: Threaten to a ssault S_-H_ S_ on or about 2300, 19911120 .
         Article 134: Drunk and d isorderly conduct on or about 2300, 19911120.
         Award: Forfeiture of $300.00 for 2 months, reduction to E-1.
         No indication of appeal in the record.

19920312:        Retention Warning: Advised of deficiency ( A lcohol A buse ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920331:        Retention Warning: Advised of deficiency (Misconduct ashore), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920424 :        NJP for violation(s) of UCMJ:
         Article 134: Wrongfully communicat e to MA1 H_ R_ D_, a threat that “If you were in the states, I would shoot you. ”
         Article 134: D runk and disorderly on or about 2150, 19 920331 .
         Article 92: Failure to obey other lawful order issues by MA1 H_ R_ D_, to leave the victim alone and leave the area .
         Award: Dismissed with warning against similar misconduct.
         No indication of appeal in the record.

19920624:        Retention Warning: Advised of deficiency (Alcohol Abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920801 :        NJP for violation(s) of UCMJ:
         Article 134: D runk and di sorderly on or about 0015, 19920719.
         Award: Liberty Risk “A” process for Admin Separation.
         No indication of appeal in the record.

19930323:        Applicant did not appeal final civil conviction in Japanese court for misconduct and commission of a serious offense. OTH discharge was already approved.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        19920914
Reason for Discharge              -

Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 19920815
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Commanding Officer R ecommendation (date):        ( 19920821 )
Separation Authority (date):      BUPERS WASHINGTON DC ( 19921003 )
         Reason for discharge directed :             -
         Characterization directed:
Date Applicant Discharged:                         19930402

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               202

Related to Period of Service Under Review :
         From Service and/or Medical Record :                Other Records :

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                           Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant :             From Representative:
        Other Documentation (Describe)

Applicant’s Issues as Summarized by the Board:

1. Quality of Service - Equity
2 . Post Service - Equity
3. Youth and Immaturity - Equity

Decisional Issues:

Issue 1 ( ). The Applicant contends he served honorably based on his behavior and performance evaluation markings . 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 m ember’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by 4 retention warnings and 3 nonjudicial punishment proceedings for violations of UCMJ Articles 92 ( f ailure to obey a lawful order), 128 ( threaten to a ssault) and 134 ( drunk and disorderly, wrongfully communicating a threat ). 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 denied .

Issue 2 ( ). Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of the Applicant’s case. There is no law or regulation, which provided 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 should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of no involvement with civil authorities. As of this time the Applicant has not provided sufficient post service documentation to consider mitigating the misconduct that resulted in the characterization if discharge. Relief denied.

Issue 3 ( ). The Applicant contends that his problems in the Navy can be attributed to his “youth and immaturity.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 ( f ailure to obey a lawful order) and 134 ( drunk and disorderly ) .

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, provi ded 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 grante d 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 | ND0601148

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