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NAVY | DRB | 2008_Navy | ND0800848
Original file (ND0800848.rtf) Auto-classification: Denied

ex-BUCR, USN
Current Discharge and Applicant’s Request
Application Received: 20080324
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20010828 - 20020812              Active:
Period of Service Under Review:
 Date of Enlistment: 20020813      Period of E nlistment : Years Extension          Date of Discharge: 20031001
Length of Service : Yrs Mths 19 D ys      Education Level:         Age at Enlistment:      
Highest Rank /Rate : BUCN Evaluation M arks: Performance: 2.0 ( 1 ) Behavior: 1.0 ( 1 ) OTA: 1.83 AFQT: 46
Awards and Decorations ( per DD 214): Rifle Pistol

NJPs :    
         20030814 : Art icle 86 (Unauthorized absence) ,
Art icle 134 (Possession of alcohol while under the age 21 years) .
                  Awarded - . Susp -
        
S CMs :   
         20030528 : Art icle 91 (Disrespectful in language to a Chief Petty Officer) ,
Art icle 92 (Failure to obey an order by consuming alcohol while under the age of 20 years) ,
Art icle 108 (Willful damage of government property) ,
Art icle 128 (Assault ), 2 specifications,
 Art icle 134 (Communicating a threat ), 2 specificaitons; (D runk and disorderly conduct) , 1 specification .
         Sentence – CONF FOR 20 DAYS FOP .

C C :      
         20030808 : Offense: Disturbing the peace by fighting .
         Sentence - $250.00 fine .

Retention Warnings: .
         20030626 : For violation of the UCMJ, Articles 91, 92, 108, 128, and 134 .

Types of Documents Submitted/reviewed

 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) Enlistment/Reenlistment Agreement Army National Guard




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

Applicant’s Issues

 1. Request change in RE Code because of being young and immature .
2. Change separation code based on p ost service conduct .

Decision

Date : 20 08 0627             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

 . The Applicant contends his RE code should be changed because he was young and immature at the time of his discharge. 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 , for additional information on .

( ) : . The Applicant contends his narrative reason sh ould be changed to BHK because he has changed his life in that he no longer drinks, has had no civil issues since his discharge, is currently a member of the National Guard, a full time student , an employee , and is a husband and father. For the edification of the Applicant, 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. V erifiable proof of any 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge .

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. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.
The summary of service clearly documents the pattern of misconduct for which the Applicant was discharged. The Applicant’s service was marred by 1 non-judicial punishment for violations of Article 86 and 134 and a Summary Court Martial for violations of Articles: 91, 92,108, 128, and 134. All were serious charges that could have resulted in a punitive discharge if adjudicated by a Special or General Court-Martial. The command did not pursue a punitive discharge but instead opted for an administrative discharge after the August NJP for a Pattern of Misconduct.

Upon review , it was determined n o impropriety or inequity occurred duri ng the Applicant’s discharge process . Th e Applicant ’s statements concerning post-service conduct, with only limited documented evidence, were not found to mitigate the severity of misconduct nor the numerous instances of misconduct which precipitated the discharge. The Board determined an upgrade was 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



Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 .



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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