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NAVY | DRB | 2008_Navy | ND0800629
Original file (ND0800629.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20080220
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20050609 - 20050707              Active:
Period of Service Under Review:
 Date of Enlistment: 20050708      Period of enlistment : Years Extension          Date of Discharge: 20070530
Length of Service : Yrs Mths 23 D ys      Education Level:         Age at Enlistment:       AFQT: 46
Highest Rank /Rate : SR     Evaluation marks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : 20061205-20070102 (28 DAYS) [Extracted from DD 214]

NJP- not found in record
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. Injustice – religious and medical discrimination
Decision

Date: 20 08 0516             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion
Issue 1 ( ). Relief Denied. The Applicant contends his discharge should be upgraded because he is a Moroccan born citizen of Muslim faith , who was medically and r acially discriminated against by his chain of command. He specifically alleges he was severely punished at Captain’s Mast , not provided transportation for his medical appointments and denied the right to attend his religious services. On 20070130 a preliminary inquiry was done to determine whether the Applicant ha d been the subject of discrimination and racial profiling. The Board concurs with the findings of the investigating officer there was no evidence of religious or medical discrimination or racial profiling against the Applicant. T he investigati ng officer c oncluded the Applicant was derelict in the performance of duties, offered excuses continually , failed to follow guidance from his chain of command and was disrespectful towards his superiors .
In regard to religious accommodation, pursuant to Department of Defense Directive 1300.17 dated November 21, 2003, worship services, holy days, and Sabbath observances should be accommodated, except when precluded by military necessity . However, nothing in the im plementing rules of the Military Departments (except when expressly provided therein) shall be interpreted as requiring a specific form of accommodation in individual circumstances . The following goals are to be used by the Military Departments in the development of guidance on the exercise of command discretion concerning the accommodation of religious practices. In the Applicant’s case the commanding officer appropriately exercised his discretion in denying the Applicant’s request for religious accommodations while on restriction.
In response to the allegation the NJP was too harsh, and the command failed to transport the Applicant to medical appointments, the Board also concurs with the Naval Inspector General’ s findings of 20070509, wherein, it is noted the Applicant failed to exercise his right to appeal the NJP within the time limit prescribed and the command had no obligation to transport him to medical appointments. The punishment given at NJP for unauthorized absences is within the limit allowed by the U niform Code of Military Justice, Chapter 47, Section 815, Art. 15 .
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 discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions constitut ing a significant departure from the conduct expected of members of the N aval service. The Applicant’s service was marred by statements he wrongfully communicated threats by saying, “I can get an AK – 47 and take care of them,“ or words to that effect in vio lation of Article 134 of the UCMJ ; this is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial . Accordingly, this misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. The Board determined r elief is not warranted.
After a thorough review of the available evidence, to include the Applicant’s Summary of 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 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 134 , Communicating a threat .



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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