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NAVY | DRB | 2007_Navy | ND0700405
Original file (ND0700405.rtf) Auto-classification: Denied
ex-AR, USN
ND07-00405
Current Discharge and Applicant’s Request
Application Received: 20070215                              Characterization Received: OTHER THAN HONORABLE
Narrative Reason: PATTERN OF MISCONDUCT                   Authority: MILPERSMAN1910-140

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Discharge not warranted by service record.
                           2. Post-service conduct.

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 070920                    Location: Washington D.C.

Discussion

Issue 1 ( ). The Applicant indicates that he received nonjudicial punishment (NJP) on 3 occasions—the first for an assault of which he claims to have been the victim; the second for breaking restriction imposed at the first NJP ; and the third for being out of liberty bounds in Mexico. The Applicant’s record indicates 2 NJPs for violations the UCMJ, Articles 86 (absence without leave); 91 (insubordinate conduct towards a warrant, noncommissioned or petty officer); 92 (failure to obey order or regulation); and 107 (false official statements). The Board concluded that the Applicant appear s to confuse the vacation of his suspended punishment from the first NJP with a second NJP; beyond that, however, the Board w as unable to reconcile the discrepancy between the Applicant’s descriptions of events with information contained in his apparently complete service record . The Applicant’s record demonstrates a pattern of misconduct . The Applicant’s assertions are not sufficient to overcome the presumption of regularity attaching to the information in his service record.

Issue 2 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. T he Applicant has not provided any documentation to support any claim of relevant post service conduct.

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)      20000923 - 20000928              Active:         
Period of Service Under Review:
 Date of Enlistment: 20000929      Years Contracted : ; Extension:                   Date of Discharge: 20020424
Length of Service : 01 Yrs 06 Mths 26 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 32          Highest Rank /Rate : AN
Evaluation marks (# of occasions):       Performance: 3.0 ( 2 )       Behavior: 3.0 ( 2 )          OTA: 3.00
Awards and Decorations ( per DD 214): SEA SERVICE DEPLOYMENT RIBBON, BATTLE "E" RIBBON

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

20011026:        CO's NJP -- Viol UCMJ Art. 86 – Absence without leave; viol UCMJ Art. 91 – Insubordinate conduct towards a Warrant Officer, Noncommissioned Officer, or Petty Officer; viol UCMJ Art. 92 – Failure to obey an order or regulation . Awarded - FOP ($610.00) for 2 months ( 1 month suspended ) ; RIR to E-2 ( suspended 6 months ) ; Restr ( 60 days) .
20011026:        Retention Warning for NJP of 20011026 for violations of UCMJ Articles 86, 91 and 92 .
20011130:        F OP and RIR awarded and suspended 20011026 vacated this date.

 20020213 :        CO's NJP -- Viol UCMJ Art. 92 – Failure to obey a lawful order ; viol UCMJ Art.107 – False official statement . Awarded - FOP ( $ 620.00 ) for ( 2 months); RIR ( E-1 ); Restr for ( 60 days ) ( 30 days suspended ) .
Discharge Process

 Date Notified:                                       2002022 6
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20020226
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Commanding Officer Recommendation (date):        ( 20020401 )
Separation Authority (date):     COMNAVAIR, U.S. PACIFIC FLEET ( 20020417 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20020424

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)      

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), 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 .


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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