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NAVY | DRB | 2007_Navy | ND0700133
Original file (ND0700133.rtf) Auto-classification: Denied
ex-ASAR, USN
ND07-00133
Current Discharge and Applicant’s Request
Application Received: 20061106   Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910.142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment Opportunities
                           2. Post Service Employment Opportunities
                           3. Immature at time of Service
                            4. Fulfilled Enlistment Contract

Decision

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

Date: 20 070906       Location: Washington D.C. The Board found that

Discussion

 Issue s 1 - 2 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 3 : ( ). T he Applicant contends that h is problems were attributed to immaturity. While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service. T he evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under general (under honorable conditions ) . A n 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by one retention warning, five nonjudicial punishment for Articles 86 and 121 , one Summary Court-Martial for Article 86 and 107 , and one civil conviction for No city decal, Suspended Driver’s License (2 nd Offense), Fictitious license plate, No registration, and No state inspection . V iolation s of the Uniform Code of Military Justice (UCMJ), Article 107 , False Official Statements and Article 121 , Larceny, are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to general (under honorable conditions) would be inappropriate .
Issue 2 : (Equity). The Applicant contends he served his obligated contract and received a discharge characterization of under other than honorable c onditions. The record clearly reflects that the Applicant did serve his entire contract. However, the Applicant was recommended for an Administrative Discharge by the Commanding Officer of the USS WASP on 20020810. The separation authority granted authorization on 20020826 to discharge the Applicant within 10 working days but authorized the Commanding Officer of the USS WASP to hold the separation in abeyance for up to 30 days to allow the Applicant to complete transitional services if applicable. The authorized 30 day abeyance permitted the Applicant to serve his entire contract. The Applicant’s service was marred by one retention warning, five nonjudicial punishment for Articles 86 and 121, one Summary Court-Martial for Article 86 and 107, and one civil conviction for No city decal, Suspended Driver’s License (2 nd Offense), Fictitious license plate, No registration, and No state inspection . V iolation s of the Uniform Code of Military Justice (UCMJ), Article 107, False Official Statements and Article 121, Larceny, are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The Board found that a n upgrade to general (under honorable conditions) would be inappropriate regardless of the time served by the Applicant in his contract.

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19980313 - 19980927     Active:         
Period of Service Under Review:
 Date of Enlistment: 19980928      Years Contracted : ; Extension:          Date of Discharge: 20020927
Length of Service : 04 Yrs 00 Mths 00 D ys          Lost Time : Days UA: NONE Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 51          Highest Rank /Rate : AS3
Evaluation marks (# of occasions):       Performance: 2.6 ( 3 )       Behavior: 2.2 ( 4 )          OTA: 2.62
Awards and Decorations ( per DD 214): MERITORIOUS UNIT COMMENDATION MEDAL, SEA SERVICE RIBBON, BATTLE"E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19991012:        Retention Warning for (Art. 86-For a period of 25 minutes on 18 Sep and a period of 50 minutes on 19 Sep 99).
19991216 :        CO's NJP -- Viol UCMJ Art. 86 – [ Unauthorized a bsence (3 specs) ] . Awarded - FOP ( $200.00 ) for ( 1 month); RIR ( E-2 ) suspended for 6 months ; Restr for ( 30 days); Extra duties ( 30 days) .
20000523:        Civilian Conviction: (1) No city decal; (2) Suspended Driver’s License (2 nd Offense); (3) Fictitious license plate; (4) No registration; (5) No state inspection.
         Sentence: (1) $50.00 fine and $30.00 court cost; (2) $500.00 fine, $152.00 court cost and 60 days in jail, 58 days suspended; (3) $100.00 fine, $102.00 court cost; (4) $100.00 fine, $2.00 court cost; (5) $100.00 fine, $2.00 court cost.
        
20011102 :        CO's NJP -- Viol UCMJ Art. 121 – ( Larceny ) at AAFES Langley Air Force base . Awarded - FOP ( $750.00 ) for ( 1 month); R estr iction ( 30 days); Extra duties ( 30 ays).
20011207:        SCM -- Viol UCMJ Art. 86 – [ Unauthorized absence (2 specs) ]; V iol of UCMJ Art 107 – ( False official statement ) . Awarded: Confinement ( 30 days ) , FOP ( $584.00 ) for (1 month), RIR (E-2). Case reviewed by Judge Advocate.

20020309:        CO's NJP -- Viol UCMJ Art. 86 – [ Unauthorized absence (5 ½/hrs) ] . Awarded - FOP ( $552.00 ) for (2 month s ); RIR (E-1) , Restr iction (45days); Extra duties 45days).
2 0020614:        Retention Warning for Viol of UCMJ, Art. 86 (Unauthorized absence).
20020626:        CO's NJP -- Viol UCMJ Art. 121 – ( Wrongfully appropriate funds ) from automated teller . Awarded - FOP ( $522.00 ) for ( 2 month s ); Restr iction (45days); Extra duties (45ays).
20020720:        CO's NJP -- Viol UCMJ Art. 86 – Failed to go to restricted muster. Awarded – Confinement on Bread & Water for ( 3 days ) .

Discharge Process

 Date Notified:                                       20020724
Reason for Discharge:     -
         -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20020725
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 20020810 )
Separation Authority (date):     COMMANDER, AMPHIBIOUS GROUP TWO ( 20020826 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20020927

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) Service Awards, Resume

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 107, False Official Statements and Article 121, Larceny .

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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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.
Employmen t / 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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