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NAVY | DRB | 2008_Navy | ND0800472
Original file (ND0800472.rtf) Auto-classification: Denied

ex-YN3, USN
Current Discharge and Applicant’s Request
Application Received: 20070104
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change: CHANGE to “Miscellaneous/General Reasons ”


Summary of Service

Prior Service:
 Inactive: US N R (DEP) 19981130 - 19990924 (DEP Discharge, Preg)    Active: 20000228 – 20030313 (HON)
Period of Service Under Review:
 Date of Enlistment: 20030314                        Period of enlistment : 4 Years    Date of Discharge: 20050301
Length of Service : 01 Yrs 11 Mths 18 D ys          Education Level: 12                Age at Enlistment: 22     AFQT: 49
Highest Rank /Rate : YN2             Evaluation marks: Performance: 3.3 ( 4 )    Behavior:   2.0 ( 4 )         OTA: 2.71 (4)
Awards and Decorations ( per DD 214): , Coast Guard Unit Commendation Medal, Armed Forces Reserve Medal, , (2)

NJP :      20041216 : Violations of UCMJ Art icles 91 (insubordinate conduct) and 92 (failure to obey) . Awarded - , , and ; s usp -
        
Retention Warning : 20040616 - f or failure of PFT body fat measurement Jan ’04 and run time May ‘04 .


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)


Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “ continuous honorable service 00 FEB 28 - 03 MAR 13 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.

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

Applicant’s Issues

 1. Change Reentry code to RE-1 .
2. Single isolated incident.
3 . Change Separation Code from JKQ to JND .
4. Post service – Bachelors degree from ITT Technical Institute (diploma) , enrolled at Colorado Technical University, Cisco Certified Network Associate (certification card) , employed and a parent.


Decision

Date: 20 08 0327             Location: Washington D.C         R epresentation :

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

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ): The Applicant stated that her discharge was based on one isolated incident . Despite a servicemember’s prior record of se rvice certain serious offenses even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general ( under honorable conditions ) d ischarge 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 non-judicial punishment for violations of UCMJ Articles 91 (insubordinate conduct) and 92 (failure t o obey). Each violation is considered a serious offense and therefore substantiates the basis for discharge . These violation s are punishable by a dishonorable discharge and up to two years of imprisonment (for each specification) if adjudicated by a Courts Martial. The Applicant’s conduct reflects the Applicant’s willful failure to meet the requirements of h er contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service.

Issue 3 ( ): The Applicant requests her narrative reason be changed to “Miscellaneous/General Reasons” and the separation code be changed to the associated JND. This narrative reason and separation code are associated with MILPERSMAN 1910-126. The MILPERSMAN designates specific phraseology to be used in blocks 26 and 28 of the DD-214. In the Applicant’s case the DD-214 indicates that she was processed for administrative separation based on MILPERSMAN 1910-142 (commission of a serious offense) . T he summary of service clearly documents the Applicant ’ s violations of UCMJ Articles 91 and 92 which created the basis for her administrative separation by reason of misconduct do to the commission of a serious offense. The Naval Military Personnel Manual, Article 1910-142 for the period in question directs that Block 26 contain the code JKQ and that block 28 contain the word “MISCONDUCT” when separating under these conditions. The Applicant was not processed under Article 1910-126 which require s NAVPERSCOM approval. No other n arrative r eason for s eparation could more clearly describe why the Applicant was discharged. To change the narrative reason s eparation or separation code would be inappropriate.
Issue 4 (Equity): 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 copy of her Bachelor of Science diploma from ITT Technical Institute and a Certified Network Associate certification card from Cisco Systems and a statement in h er letter to the board claiming enrollment in a Masters Degree program at Colorado Technical University, employment and a responsible single parent as doc umentation of her post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced a verifiable employment record, 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 her 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION 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 s of the UCMJ, Article s 91 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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