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NAVY | DRB | 2008_Navy | ND0800507
Original file (ND0800507.rtf) Auto-classification: Denied

057-68-6901, ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 200080111
Characterization of Service Received:
Narrative Reason for Discharge: DUE TO COSO
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      010126 - 010213                  Active:
Period of Service Under Review:
 Date of Enlistment: 010214        Period of enlistment : Years Extension          Date of Discharge: 20050513
Length of Service : Yrs 10 Mths 03 D ys    Education Level:         Age at Enlistment:       AFQT: 55
Highest Rank /Rate : AO3/E-4        Evaluation marks: Performance: NOT FOUND (   )        Behavior:       (    )      OTA:     
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA /C ONF : 20041115 Missed movement of USS RONALD REAGAN, NASNI, San Diego
                  20041204 Missed movement of USS RONALD REAGAN, NASNI, San Diego
                  20041212 Missed movement of USS RONALD REAGAN, NASNI, San Diego
                   20050111 Missed movement of USS RONALD REAGAN, NASNI, San Diego
                   20050125 Missed movement of USS RONALD REAGAN, NASNI, San Diego
20050215 Returned to military control at 0547 onboard USS RONALD REAGAN

 NJPs :    
         20020913 : Art(s) unknown . Awarded - unknown Susp -
20050428 : Art(s) 86 (4), 92(2), 107, 115, Malingering . Awarded - X3 days Susp -

S CMs :   
20050224 : Art(s) 86, Unauthorized absence from 200040917 – 20050215 ( 151 days ) . Sentence -
RESTRICTION 60 DYS

SPCMs:  

C C :       Sup Ct of Cal, Co of San Diego
         20040912 : Offense: Cal Pen code 245(a) Assault w/ deadly weapon likely to produce serious bodily harm. Sentence – fine, restitution and committed to Sheriff for 270 days, time served 85 days + 42 days of credits for total of 127 days .

Retention Warnings: .

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. Not present during Capt ain’s Mast and CO denied Administrative Separation Board’s findings
2. Post service
3 . Wants to reenlist- to complete remaining 14 months

Decision

Date: 20 08 0404             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall DUE TO COSO .

Discussion

Issue 1 ( ). Applicant contends that his characterization of service should be upgraded because he was denied the right to appear at Captain’s Mast and his commanding officer denied the administrative board’s findings. The Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service and/or the reason for discharge if an error or inequity exists within the separation process. Based upon a review of the records pertaining to this case Board determined that no such error or inequity occurred during the administrative separation process. T he Applicant’s record is marred by one non - judicial punishment , one summary court-martial, one civil conviction, and an a dministrative d ischarge b oard which voted unanimous ly for misconduct , with a two to one recommendation for separation with an OTH . The Applicant has not provided nor does the record contain any evidence of wrongdoing by the Applicant’s Commanding Officer or anyone else in the disciplinary or discharge process.

 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. However, 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.

Issue 3. which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum for additional information regarding Reenlistment/RE-code s.

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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, 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 of the UCMJ, Art. 92, Disobey Orders, Art . 107 , F alse Official Statement, Art 115, Malingering .

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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