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NAVY | DRB | 2007_Navy | ND0700849
Original file (ND0700849.rtf) Auto-classification: Denied
ex-AA, USN
ND07-00849
Current Discharge and Applicant’s Request
Application Received: 20070530   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Family issues
                          
Decision

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

Date: 20 071220    Location: Washington D.C         R epresentation :

Discussion

 Issue 1: ( ). The Applicant contends that his problems were attributed to his lack of family up bringing and family issues while he was in the Navy . While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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. The Applicant’s service was marred by one retention warning and one special court-martial for violations of the Uniform Code of Military Justice (UCMJ), Article 86 [Unauthorized absence (more than 30 days)]and Article 92 (Dereliction of duties). Violation of UCMJ Article s 86 and 92 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate

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)      19930204 - 19930322              Active:         
Period of Service Under Review:
 Date of Enlistment: 19930323      Years Contracted : ; Extension:   Date of Discharge: 19950728
Length of Service : 01 Yrs 08 Mths 29 D ys          Lost Time : Days UA: 168 Days Confine d : 49
Education Level:         Age at Enlistment:       AFQT: 32          Highest Rank /Rate : AN
Evaluation marks (# of occasions):       Performance: 3.4 ( 1 )       Behavior: 3.6 ( 1 )                  OTA: 3.6
Awards and Decorations ( per DD 214): NDSM

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

 19940319:        Retention Warning for you establishing a pattern of failure to pay just debts by failing to make your monthly payment to Credit Card Home Center and failing to pay down your payment on 19931206.
19940715:        Applicant declared a deserter.

19941221:        Special Court Martial.
         Charge I: violation of the UCMJ, Article 86,
         Specification: Unauthorized absence 19940615 - 19940910, (93 days/surrendered)
         Additional Charge: violation of UCMJ, Article 92,
         Specification: Dereliction in the performance of duties.
         Findings: to Charge I and specification thereunder, guilty., to the Additional Charge and specification thereunder , guilty.
         Sentence: Confinement for 6 0 days , forfeiture of $ 2 00 .0 0 per month for 5 months, reduction to E- 2 .
19941221:        Applicant to confinement.

 19950208:        Applicant released from confinement and restored to full duty.
19950322:        Applicant UA since 0715

19950422:        Applicant declared a deserter.

19950605:        Applicant apprehended by Athens Police Dept., Athens, GA for stolen plates and suspended license. Applicant released on bonded. Civilian charges pending. Applicant returned to military control 0950, 19950605 by DIP Washington, DC. Lodged at Clark County Jail, Athens, GA to awaiting pick up. Applicant released to NACU GLAKES, IL 0805, 19950605. Applicant transferred with escort and DOB TPU NORVA 1115, 19950607. Restored to full duty status 0950, 19950605.

Discharge Process

 Date Notified:                                       19950208
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19950223
Rights Elected at Notification:
         Consult with Counsel                       NO INDICATION
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Administrative Board Date :       19950505
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 199505XX )
 ASAN (M&RA)      APPROVED (19950629)
 Separation Authority (date):     BUPERS WASHINGTON DC ( 19950706 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19950728


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 9, effective 22 Jul 94 until 02 Oct 96, Article 3630600, 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 s 86 and 92.


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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