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NAVY | DRB | 2006_Navy | ND0601149

Original file (ND0601149.rtf) Auto-classification: Denied

ex-AR, USN
ND06-01149

Current Discharge and Applicant’s Request :

Application Received:                               20 060908
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 1910-142
Last Duty Assignment/ Command at Discharge:       nattc pensacola fl

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:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Applicant’s Issues as Summarized by the Board:

1. Re-entry into military service
2 . Quality of Service - Equity.
3 . Post service - Equity
4 . Youth and immaturity.

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                20010919 - 20011113
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20011114
Years Contracted :                                   ;
Date of Discharge:                                  20020531
Length of Service:                                  00 Yrs 06 Mos 18 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:

Education Level:                                    11
Age at this Enlistment:
AFQT:                                                 68
Highest Rate/Rank:                                   AR

Performance Evaluation Averages (number of marks):
Performance :                                         NOB
Behavior :                                            2.0 (1)
OTA :                                                   2.00

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

20020515 :        NJP for violation(s) of UCMJ:
         Article 86 (3 specs) : Missing muster.
         Specification 1: Unauthorized absence from 0700, 20020403 until 0920, 20020403.
         Specification 2: Unauthorized absence from 0600, 20020412 until 0634, 20020412.
         Specification 3: Unauthorized absence from 0700, 20020412 until 0710, 20020412 .
         Article 91 (2 specs):
         Specification 1: Disobeying a lawful order issued by Sergeant on 20020401, to participate in physical training.
         Specification 2: Disrespect with contempt toward Sergeant by saying “she can write me up if she pleases,” on 20020403.
         Article 92 (2 specs):
         Specification 1: Failure to obey a lawful order /regulation on 20020323 by wrongfully possessing and consuming alcoholic beverages while under the legal drinking age.
         Specification 2. Failure to obey a lawful order/regulation on 20020510 by wrongfully possessing and consuming alcoholic beverages while under the legal drinking age.
         Article 112: Drunk on duty on 20020520
         Article 117: Using provoking speeches or gestures toward another service member on 20010323.
         Article 128: On 20020323 committed assault on another service member by pointing at him a dangerous weapon; with a means to likely to produce death or grievous bodily harm, to wit: a knife .
         Article 134: Drunk and disorderly on 20020323.
         Award: Forfeiture of $ 552 .00 for 2 month s , restriction and extra duty for 45 days .
         No indic ation of appeal in the record. [Details of Articles extracted from Commanding Officer’s letter dated 20020517.]

20020515:        Applicant counseled concerning alcohol/substance abuse. Applicant refused treatment.

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

NONE

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20020515
Reason for Discharge     due to:
Least Favorable Characterization:
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 20020515
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Recommendation of Commanding Officer (date):     ( 20020517 )
Separation Authority (date):      CHIEF OF NAVAL EDUCATION AND TRAINING ( 20020521 )
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         20020531

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)                 8

Total Number of Pages:                            9

D escription of Other Documentation:
        Letter from applicant to Congressman R_ Office
         Release of Information form
         Letter from M_ G. D_, R.N., Director of Social Development
         Certificate of recognition
         Positive incident report
         Certificate of completion
         Job Corps Center diploma
         Letter from Member of Congress

Discussion:

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 ( ). 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 one nonjudicial punishment proceeding for violation of UCMJ Articles 86 (unauthorized absence), 91 (Disobeying a lawful order), 92 (Failure to obey a lawful order or regulation), 112 (Drunk on duty), 117 ( using provoking speeches or gestures towards another service member), 128 (Assault) and 134 (Drunk and disorderly). The Applicant’s conduct , w hich 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 3 ( ). 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 Applicant’s case. 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-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 of discharge. Relief denied.

Issue 4 ( ). The Applicant contends that his problems in the Navy can be attributed to his 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 31, dated 20 Feb 01, effective 25 January 2001 until
21 August 2002, 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.

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 s 91 (Disobeying a lawful order), 92 (Failure to obey a lawful order or regulation), 112 (Drunk on duty), 128 (Assault) 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, 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 | ND0601149

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