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NAVY | DRB | 2008_Navy | ND0800153
Original file (ND0800153.rtf) Auto-classification: Denied

ex-SKSR, USN

Current Discharge and Applicant’s Request
Application Received: 20071106
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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


Summary of Service
Prior Service:
 Inactive: US N R (DEP)      20021031 - 20021106             
Period of Service Under Review:
 Date of Enlistment: 20021107                        Period of enlistment : 4 Years            Date of Discharge: 20061103
Length of Service : Yrs Mths 26 D ys      Education Level: 12       Age at Enlistment: 22              AFQT: 37
Highest Rank /Rate : AN              Evaluation marks: Performance: 4.0 ( 2 )    Behavior: 3.0 ( 2 )                  OTA: 3.42 (2)
Awards and Decorations ( per DD 214): , , , , and

Periods of UA /C ONF : 20050820 – 20050821; 20060627 – 20060629; 20060630 – 20060721; 20060810 – 20061101 (76 days)

NJP :      2 0040415 : Art icles 91 ( insubordinate conduct ) , 92 (failure to obey) . Awarded - , , and Susp - , , and
         20050831 : Art icles 86 (unauthorized absence, 2 specifications) and 92 (failure to obey) . Awarded - , , , and

S CM :     20060710 : Art icle 128 (assault, 3 specifications) . Sentence - , FOP, and .

C C :       20030819: Norfolk General District Court; Offense – Following to closely. Sentence – Fined.
         20040336: Norfolk General District Court; Offense – Reckless driving.
         20040504: Norfolk General District Court; Offense – Following too closely and no operators license. Sentence – Fined
         20041008: Newport News General District Court; Offense - Driving with suspended license and failure to use headlights. Sentence – 30 days jail (28 suspended) fined $180 and court costs.
          20041012: Mec klenburg General District Court; Offense – Speeding (95 in 65) and driving under suspended license. Sentence – fined
         20041221 Hampton General District Court; Offense - Driving on suspended license, altered license plate, no vehicle registration, and improper passing. Sentence – 30 days jail (suspended/probation) and fine.
          20050118 Norfolk General District Court; Offense - Reckless driving, driving with suspended license (6 th offense) and defective equipment. Sentence – 16 months jail (6 months 24 days suspended), fine $30, and court costs.
          20050316 Norfolk General District Court; Offense - Disregard a traffic light and driving on a suspended license. Sentence - $300 + court cost.
         20050822 Norfolk General District Court; Offense - Suspended license and reckless driving. Found guilty in absentia.
         20050920 Virginia Beach District Court; Offense - Operating an uninspected vehicle and driving with suspended operators license . Sentence - $50 + court cost.
                  
Retention Warnings: 20051119 : For violations of UCMJ Articles 86 and 92 .
                  20040415: For violations of UCMJ Articles 91 and 92.

Types of Documents Submitted
Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:
Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. The type of discharge is to harsh based on the offense.
2. Civil authorities dismissed the charges which lead to arrest and unauthorized absence .


Decision

Date: 20 08 0228             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Discussion

 Issue 1 and 2 ( ): The Applicant contends that his under other than honorable conditions characterization of service was too harsh. Based upon the record, t he Applicant’s service was marred by twenty civilian offense convictions two retention warnings two nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence, 2 specifications), 91 (insubordinate conduct), and 92 (failure to obey, 2 specifications) and a summary court martial for violation of UCMJ Article 128 (assault, 3 specifications) . These offenses form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as t wo or more punishments /convictions during the same enlistment. The Applicant was notified of his impending discharge and of his rights to consult counsel and be heard before an Administrative D ischarge B oard. The Applicant elected these rights. After hearing the Applicant’s case the Administrative B oard unanimously found that the Applicant had committed misconduct by a pattern of misconduct, by the commission of a serious offense and by civilian conviction. Furthermore, the A dministrative B oard also unanimously found that this misconduct warranted separation, and they unanimously recommended separation with a characterization of service as under other than honorable conditions . After assuring compliance with MILPERSMAN 1910-140 the separation authority directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct with a service characterization of under other than honorable conditions . N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A n under other than 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. For the information of the Applicant, v iolations of UCMJ Article s 86, 91 and 92 carry a penalty of a dishonorable discharge and up to two years of imprisonment for each specification if adjudicated by a court martial. The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of 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 evid ence submitted by the Applicant the Board found that

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 86, 91and 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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