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NAVY | DRB | 2007_Navy | ND0700376
Original file (ND0700376.rtf) Auto-classification: Denied
ex-MASN, USN
ND07-00376
Current Discharge and Applicant’s Request
Application Received: 20070131   Characterization Received:
Narrative Reason: PATTERN OF MISCONDUCT                   Authority: MILPERSMAN 1910-140

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change :

Applicant’s Issues:       1. Discharge based on two isolated incidents in 15 years of honorable service and was too harsh .
                           2. Discharge was racially biased.


Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 071025                                       Location: Washington D.C.


Discussion

 Issue 1 ( ): The Applicant states his discharge was based on two isolated incident s without consideration for h is previous 15 years of good conduct and was too harsh . Despite a servicem ember’s prior record of service certain serious offenses though isolated warrant separation from the naval service in order to maintain proper order and discipline. The record documents the Applicant’s two nonjudicial punishments for violati ons of UCMJ Articles 92 and 107. T his forms the basis for the Applicant’s discharge. The Applicant consulted with an attorney before waiving his rights to an administrative discharge board. Subsequently the d ischarge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-14 0 . Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A general (under honorable conditions ) characterization of service 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

Issue 2 ( ): In the Applicant’s statement to the Board he states that his discharge was racially biased. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of racism . However, even if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The record clearly reflects his willful and continued misconduct which demonstrated he was unfit for further service.


Administrative Corrections to the Applicant’s DD 214

 The NDR B did note administrative error s on the original DD Form 214 :

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ CONTINUOUS HONORABLE ACTIVE DUTY FROM                            19901203 UNTIL 200 10630 ’’
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19901012 - 1990120 2             
Active:                   19901203 - 19930619
                           19930620 – 19981015 HON
                           19981016 - 20010630

Period of Service Under Review:
 Date of Enlistment: 20010701      Years Contracted : 4 ; Extension:         Date of Discharge: 20060222
Length of Service : 04 Yrs 07 Mths 22 D ys                           Lost Time :
Education Level: 12       Age at Enlistment: 34     AFQT: 32          Highest Rank /Rate : MA2
Evaluation marks (# of occasions):       Performance: 3.3                  Behavior: 2.8             OTA: 3.22 (4)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL (2), GOOD CONDUCT AWARD (4) , SEA SERVICE DEPLOYMENT RIBBON, FLAG LETTER OF COMMENDATION, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), OVERSEAS SERVICE RIBBON (5), ARMED FORCES EXPEDITIONARY MEDAL, SOUTHWEST ASIA SERVICE MEDAL WITH BRONZE STAR.


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

 20010701:        Applicant reenlisted for four years while stationed in Bahrain.

20050823:        NJP - Viol UCMJ Art. 92 (d ereliction in the performance of duties, failed to have qualified watchstander on watch during his duty) and Art. 107 (f alse o fficial s tatement , told supervisor that another petty officer had been to work when in fact this was not true), on 14 and 15 August, 2005
         Awarded - FOP ( $978 for 2 months , 1 month suspended for 6 months); RIR (E-4); Restr and Extra duties (45 days).
20050907:        Retention Warning: Advised of deficiency (NJP on 20050823 for dereliction of duty and false official statements. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
20060111:        Retention Warning: Advised of deficiency ( Multiple verbal and written counseling ’s for substandard uniform appearance; insubordinate behavior towards superiors, failure to comply with radio protocol while assigned to NASWF Emergency Communications Center, failure to properly complete all appropriate entries in the Security Desk Journal and Communications Log; improper conveya nce of official phone messages, inability to ascer tain if a building alarm is set, failure to maintain a proper daily routine while in restricted status , and general unsatisfactory performance of your duties in the Emergency Communications Center after re-training despite receiving remedial training. ) notified of corrective actions and assistance available, advised of consequenc es of further deficiencies and issued discharge warning.
20060130:        NJP - Viol UCMJ Art. 92 (d ereliction in performance of duties, allowing unauthorized use of the National Crime Information Center FBI Information System terminal) , on 23 Jan, 2006 .
         Awarded - FOP ($846 for 2 months); RIR (E-3); Restr and Extra duties (45 days).

20060222:        Applicant discharged for misconduct due to a pattern of misconduct with a characterization of service as general under honorable conditions.
20060228:        Commanding Officer NAS Whiting Field informed the Commander, Navy Personnel Command of the Applicant’s separation from the U. S. Navy with a General (Under Honorable Conditions) characterization of service. Commanding Officer’s comments: “MASN Walton has been an administrative burden to this command since his arrival two years ago. Questionable personal conduct resulted in early termination of duties in Iraq and domestic difficulties locally resulting in FAP and state involvement. He received NJP on two separate occasions within a five month period at this command for dereliction of duties and making false official statement. ”

Discharge Process

 Date Notified:                                       20060208
Reason for Discharge:     -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20060208
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Separation Authority (date):     CO, Naval Air Station, Whiting Field ( 20060228 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20060222


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) Letter from


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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 s of the UCMJ, Article s 92 and 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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