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NAVY | DRB | 2007_Navy | ND0700287

Original file (ND0700287.rtf) Auto-classification: Denied

ex-YNSN, USN
ND07-00287

Current Discharge and Applicant’s Request

Application Received: 20070103 Characterization Received:
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3610240

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment code improper and inequitable due to administrative errors.
2. Revocation and repayment of BAQ and VAH was improper and erroneous due to administrative
e rrors.
3. Criminal conviction at Captain’s Mast was improper, inequitable and harsh
4. Discharge characterization was improper and inequitable due to administrative errors.
                           5. Post Service

Decision

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

Date: 20 071004    Location: Washington D.C.        Representative : c ivilian Counsel

Discussion

Issues 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 : ( ). The Applicant contends that the criminal conviction she received at Captain’s Mast was improper, inequitable and harsh. Nonjudicial Punishment (Captain’s Mast) is a disciplin ary measure available to commanders. The receipt of nonjudicial punishment does not constitute a criminal conviction . The Applicant was afforded the opportunity to demand a trial by court-martial for the alleged offense. Additionally, the Applicant was given the opportunity to appeal the punishment to the next superior authority if she considered the punishment unjust or disproportionate to the offense.

Issue 4 : ( ). The Applicant contends that her discharge characterization was improper and inequitable . When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A General (Under honorable conditions) 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. Th e Applicant’s service was marred by the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ) . The Applicant’s incomplete service record does not identify the Article of the UCMJ that was violated but does indicate the Applicant was reduced in rank for the first NJP . The second NJP was for violation of the U CMJ , Article 1 07, False Official Statement. Violation of UCMJ Article 107 is considered serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate .

Issue 5: ( ). ). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided eight character statements and her resume. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have had the agencies that she provided her voluntary work to provide verification of her voluntary work.. Additionally, the Applicant could have provided certification of non-involvement with civil authorities , and proof or transcripts of her advanced educational achievements as documentation of post-service accomplishments. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19891213 - 19900305              Active:          19900306 - 19940310
Period of Service Under Review:
Date of Enlistment: 19940311               Years Contracted :                 Date of Discharge: 19961122
Length of Service : 02 Yrs 08 Mths 12 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 32/40       Highest Rank /Rate : YN3
Evaluation marks (# of occasions):       Performance: 3.3 ( 3 )       Behavior: 3.3 ( 3 )          OTA: 3.60 (4.0 evals)
Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )         OTA: 3.43 (5.0 evals)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE MEDAL, NAVY "E" RIBBON, GOOD CONDUCT MEDAL (1) ENDING 94MAR05; SEA SERVICE DEPLOYMENT RIBBON (3); SOUTHWEST ASIA SERVICE MEDAL (1)

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

19941031 :        NJP. RIR from YN3 to YNSN [Extracted from NAVPERS 1070/609, Enlisted Performance Record.]

19960405:        NJP -- Viol UCMJ Art.107. No further information found in record. [Extracted from NAVPERS 1616/26, Evaluation Report and Counseling Record.]

Discharge Process

Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:
Least Favorable Characterization:

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         )
         Administrative Board
         GCMCA review

Administrative Board (if any) :   NOT FOUND IN RECORD

Commanding Officer Recommendation (date):
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       19961122

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) Applicant's sons' birth certificate
Letter from Member of Congress
United States Code, Title 17 - Pay and Allowances of the Uniformed Services, Chapter 7 - Allowances, Sec. 403 Basic Allowance for Housing
DOD Financial Management Regulation
Todaysthv news article
Applicant's resume

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 Oct ober 19 96 until 12 December 19 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 .

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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NAVY | DRB | 2007_Navy | ND0700287

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