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NAVY | DRB | 2008_Navy | ND0800547
Original file (ND0800547.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080117
Characterization of Service Received:
Narrative Reason for Discharge: DUE TO COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20010821 - 20010906             
Period of Service Under Review:
 Date of Enlistment: 20010906                        Period of enlistment : 4 Years             Date of Discharge: 20031014
Length of Service : Yrs Mths 09 D ys      Education Level: 12                Age at Enlistment:       AFQT: 41
Highest Rank /Rate : AA              Evaluation marks: Performance: 2.0 ( 1 )    Behavior: 1.0 ( 1 )                  OTA: 1.67 (1)
Awards and Decorations ( per DD 214): , , and

Periods of UA /C ONF : 20020602 - 20020608

NJP :      20020712 : Violation of UCMJ Art icle 86 (unauthorized absence); a warded - , , , and ; s usp - and
         20030821 : Violations of UCMJ Art icles 86 (unauthorized absence) and 113 (misbehavior of a sentinel); a warded - , , and ; s usp -

S CM :      20021121 : Violation of UCMJ Art icles 86 (unauthorized absence, 2 specifications) and 121 (larceny, 6 specifications); s entence - , , and .


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. Incorrect DD-214 and request reenlistment.
2. First time sleeping on watch, did not warrant such harsh punishment (working 18 hour watches in 110 degree compartment temperatures and getting very little sleep).
3 . Treatment was inconsistent with punishment of shipmates who had also fallen asleep on watch .
 4. Was not treated fair or equitable, was discriminated against based on racism.


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 MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE .

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 contends that his discharge was not warranted by his one offense of sleeping on watch. P er regulation t he decision to administratively separate a service member is made independently of the imposition of NJP. The Applicant was taken to nonjudicial punishment on 20030821 for a violations of UCMJ Articles 86 (unauthorized absence, place of duty) and 113 (misbehavior of a sentinel i.e. sleeping on watch). For this misbehavior the Applicant was awarded forfeiture of pay, restriction and extra duties. Subsequently the commanding officer determined that it was in the best interest of the U . S . Navy to process the Applicant for administrative separation. When a member is processed for administrative separation all reasons for separation must be included in the administrative process , this includes all nonjudicial punishments, civilian convictions, court martials, retention warnings, and councelings during the current enlistment . With this information the discharge authority makes the decision of retention or separation and determines the reason for separation and the overall characterization of the member ’ s service.

Issue 3 (Propriety): The Applicant stated that his discharge was inconstant with the punishment his shipmates received for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence supports the conclusion that the Applicant committed misconduct due to the commission of a serious offense , that separation from the n aval service was appropriate, and that a under other than honor conditions characterization of service was warranted.

Issue 4 (Equity): In the Applicant’s letter to the Board he states that his misconduct was the result of being discriminated against based on racism. The government enjoys a presumption of regularity in the conduct of its affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. A thorough review of all 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 produced no evidence of racially motivated discrimination . E ven if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. T he Board found that


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 each violation of the UCMJ, Article s 113 and 121 .



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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