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NAVY | DRB | 2006_Navy | ND0601196

Original file (ND0601196.rtf) Auto-classification: Denied

ex-OSSR, USN
ND06-01196
Current Discharge and Applicant’s Request:

Application Received:                               20 060921
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 1910-142/300
Last Duty Assignment/ Command at Discharge:       USS SPRUANCE (DD 963)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:
Applicant’s issues as summarized by the Board     1. Equity – In-service performance
                                                      2. Equity – Benefits
                                                      3. Equity – Re-enlistment

Decision:

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

Date of Decision:                                            20 070809
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:

Discussion

Issue 1 (Equity). The Applicant requests upgrade of his discharge based i n part on his in-service performance. 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. A general 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 two non- judicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 87 (missing movement), 91 (disrespect), 92 (disobey an order), and 134 ( g eneral order s ). Violations of UCMJ Articles 87 and 92 are considered serious offense s for which a punitive discharge is authorized at courts-martial. 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 is not warranted.

Regarding Issue(s) 2 and 3: issues which cannot form the basis of relief for the Applicant. The Applicant is directed to the Addendum regarding Service Benefits and Re-enlistment.

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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19990325-19990707
Active:

Period of Service Under Review :
Date of Enlistment:                                 19990708
Years Contracted :                                   ;
Date of Discharge:                                  20020222
Length of Service
         Active:                                     02 Yrs 07 Mths 15 D ys ( d oes not exclude lost time)
         Inactive:                                            None
Time Lost During This Period:                      58       Days UA: 58 Days Confinement: None

Education Level:
Age at this Enlistment:
AFQT:                                                 53
Highest Rate/Rank:                                   OSSN

Performance Evaluation Averages (number of marks):
                                    Performance : N/A Behavior : N/A OTA : N/A

Awards and Decorations (as listed on the DD Form 214): NONE

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

20000718:        Applicant to unauthorized absence at 0700 on 20000718.

20000720:        Applicant from unauthorized absence at 1745 on 20000720 (2 days/surrendered).

20010926 :        NJP for violation(s) of UCMJ:
         Article 86:
         Article 87:
         Award: Restriction and extra duty for 45 days, reduction to E-2.
         No indication of appeal in the record.

2001122 8 :        NJP for violation(s) of UCMJ:
         Article 86:
         Article 91: (4 specifications)
         Article 92: (2 specifications)
         Article 134:
        Award: 30 days confinement to CCU , reduction to E-1 .
         No indication of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Discharge Process :
Date Notified :                                        20020222
Reason for Discharge                                due to:
                                                      due to:
Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 20020222
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Commanding Officer R ecommendation (date):        ( 20020214 )
Separation Authority (date):      COMMANDING OFFICER, USS SPRUANCE (DD 963) ( 20020214 )
Narrative reason directed :        MISCONDUCT COMMISSON OF A SERIOUS OFFENSE AND PATTERN OF MISCONDUT
         Characterization directed:
Date Applicant Discharged:                         20020222

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

Total Number of Pages:                            1

D escription of Other Documentation:


Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. 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 87 (missing movement) and 92 (failure to obey an 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, 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 20374-5

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NAVY | DRB | 2006_Navy | ND0601196

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