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NAVY | DRB | 2007_Navy | ND0701075
Original file (ND0701075.rtf) Auto-classification: Denied
ex-GMGSR, USN
ND07-01075

Current Discharge and Applicant’s Request
Application Received: 20070801   Characterization Received:
Narrative Reason: MISCONDUCT - PATTERN OF MISCONDUCT     Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Rea son change : CHANGE

Applicant’s Issues:       1 . Post – volunteer work (2 yrs community ambulance, rescue squad (1000 hours), $100,000 in                                 medical supplies to Guatemala, CPR instructor (Red Cross), EMT, nursing pre-requisites complete.
                          

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT - PATTERN OF MISCONDUCT .
Date: 20 08                      Location: Washington D.C         R epresentation :


Discussion

 Issue 1 ( ): The NDRB is authorized to consider post-service factors in the re characterization 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 servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding 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 a n unofficial transcript showing 48 hours of college credit, multiple medical training certificates and Red Cross qualification cards, certification of volunteer work with the Ephrata Area Rescue Service, in addition to his statement of volunteer work in support of the community ambulance service, and the Guatemala medical mission as doc umentation of his post-service accomplishments. The Board applauds the Applicant's efforts as a good citizen. However, the Applicant could have produced official evidence of continuing educational pursuits, a verifiable employment record, additional documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: US N R (DEP) 19890531 - 19890905       
Period of Service Under Review:
 Date of Enlistment: 19890906               Years Contracted : 4       Extension: 12 months      Date of Discharge: 19921231      
Length of Service : 03 Yrs 09 Mths 26 D ys                                              Lost Time :
Education Level:         Age at Enlistment: 18     AFQT: 84          Highest Rank /Rate : GMG3
Evaluation marks (# of occasions):       Performance: 3. 0 ( 3 )      Behavior: 3.1 ( 3 )                 OTA: 3. 2 (3 )      
Awards and Decorations ( per DD 214): NDSM, SSDR, SWASM (w/ bronze star), JMUA      


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

 19910215:        Applicant reports for duty aboard USS PELEIU (LHA 5).

1992 0 716 :        NJP – Viol ation s of UCMJ Art icle 86 (unauthoriz ed absence, two specifications): 1800 19920706 fail to go to appointed place of duty and 19920707 UA from morning quarters .
          Awarded - FOP ($ 250/month for two months); RIR ( E-3 ); Restr ( 15 days); Extra duties ( 15 days).
         Appeal denied
19920728:        Retention Warning.
19920730 :        NJP – Viol ation s of UCMJ Art icle s 107 (false official statement) and 123a (insufficient fund s check) .
          Awarded - RIR ( E-3 ); Restr ( 30 days); Extra duties ( 30 days).

19920918 :        NJP – Viol ation s of UCMJ Art icle s 86 (unauthorized absence, three specifications) and 107 (false official statement): 0630 19929811 UA from restricted muster, 1630 19920812 UA from restricted muster, 1130 19920815 UA from restricted muster.
         Awarded - FOP ($ 200/month fo r one month); RIR ( E-2 ); Restr for ( 25 days); Extra duties ( 25 days) ; RIR and forfeiture of $150/mo suspended for six months.
         Appeal denied
19921002:        Vacated previously suspended punishment due to continued misconduct.
19921002 :        NJP – Viol ation of UCMJ Art icle 86 (unauthorized absence, three specifications) : 0630 19920919 UA from restricted muster, 0630 19920922 UA from restricted muster, 0630 19920923
         Awarded - FOP ($ 100/month for two months); RIR ( E-1 ); Bread and Water (3 days); RIR and FOP suspended for six months.

19921030:        Vacated previously suspended punishment due to continued misconduct.
19921030 :        NJP – Viol ation of UCMJ Art icle 86 (unauthorized absence, three specifications) : UA 0630 to 0715 19921014, UA 0630 to 0645 19921015, UA 0630-0715 19921020
         Awarded - Restr ( 45 days).

19921210:        Commanding Officer,
         Comments: “SR J_ (Applicant) has been to five separate Captain’s Masts during his current period of enlistment, all of these occurring within the last five months. He has repeatedly demonstrated irresponsible behavior in maintaining his personal finances and in following military regulations. Even when given additional opportunities to improve his performance he would quickly return to the previous pattern of irresponsibility and often open rebellion to regulations. He has failed to assume accountability for his behavior and is a burden to his division and the ship. ”


Discharge Process

 Date Notified:                                       19921014      
Reason for Discharge:     -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19921019      
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Administrative Board Date :       19921201
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:    BY

Commanding Officer Recommendation (date):        ( 19921210 )
Separation Authority (date):     BUPERS ( 19921217 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19921231


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, effe ctive 15 Aug 91 until 04 Mar 93 , Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 of the UCMJ, Article s 107 and 123a .


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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