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NAVY | DRB | 2008_Navy | ND0800879
Original file (ND0800879.rtf) Auto-classification: Denied

ex-FA, 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:

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20010618 - 20010807              Active:

Period of Service Under Review:
 Date of Enlistment: 20010808      Period of E nlistment : Years Extension          Date of Discharge: 20041210
Length of Service : Yrs Mths 03 D ys      Education Level:         Age at Enlistment:       AFQT: 35
Highest Rank /Rate : FN     Evaluation M arks: Performance: 2.3 ( 3 )     Behavior: 2.3 ( 3 )          OTA: 2.22
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : UA: 20011215 - 20020103 (19 days) ;
20040129 (1 day) ;
20040521 (1 day) ;
20040803 – 20041015 (72 days).
CONF: .

NJPs :    
         20020812 : Art icle 81 (Conspiracy),
Art icle 128 (Assault) .
         Awarded - . Susp - .
        
20040402 : Art icle 86 (2 specifications) ,
         (1) (Failure to go to appointed place of duty)
         (2) (Absent from unit 20040326-20040330 (3 days)) .
         Awarded - CCU . Susp - .

S CMs :   
         20041103 : Art icle 86 (Absent from unit 20040803-20041015 (72 days)) ,
         Art icle 87 (Missing movement) ,
         Art icle 90 (Disobeying superior commissioned officer) ,
         A rt icle 91 (Willful disobedience of warrant, noncommissioned or petty officer) ,
         Art icle 92 (2 specifications) (Dereliction in the performance of duties) .
         Sentence - .
          CA action: 20041103 Approved and ordered executed.

Retention Warnings: .
         20020812 : No further information found in service record. [Extracted from Commanding Officer’s message dated 20041112 . ]






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)



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

Applicant’s Issues

 1. Had to miss ship’s movement to be with fiancé and unborn child .
2. Post service conduct.

Decision

Date : 20 08 0702             Location: Washington D.C         R epresentation :

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

 : ( ) . The Applicant contends his discharge was improper because he entered an unauthorized absence to be with his hospitalized fiancé and unborn child. He argues while stationed on board the USS ABRAHAM LINCOLN (CVN 72), the chain of command disapproved his leave chit “with no real explanation” the week the ship was scheduled to go on cruise. 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 . 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. An under other than honorable conditions discharge 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. T he Applicant’s service was marred by one retention warning and two nonjudicial punishment proceedings for violations of the U niform C ode of M ilitary J ustice , Articles 81, 86, 87, 90, 91, 92 and 128. These are considered serious violations which could have resulted in a punitive discharge if awarded by a special or general court-martial ; t he command opted for a summary court-martial instead. There is no evidence in the record, nor has the Applicant submitted documentation to support the claim his fiancé was having complications or that the unborn child w as in danger . There was also no documentation submitted showing the command wrongfully denied hi s leave request . The Applicant states he planned to miss ships movement as a result of being denied leave and return after the baby was born . Documents show the birth date of the baby as 21 August 2004, the Applicant did not return until 15 October 2004. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Therefore, the Board determined an upgrade is not warranted.
: ( ) . The Applicant is opined that he is more mature now and h a s decided to get his life together an d be a good father. He submitted character references an d a driver’s skill certificate as evidence of post service performance. There is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. 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. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. 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. After review ing the evidence submitted by the Applicant, the Board determined the evidence of post-service conduct did not mitigate the conduct which precipitated the discharge. Therefore, an upgrade would be inappropriate.

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 April 2005, 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, Article 86 - Unauthorized absence (over 30 days), Article 87 - Missing ship’s movement, Article 90 – Disobeying superior commissioned officer, Article 91 – Willful disobedience, and Article 128 – Assault consummated by battery.



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 other medical related reasons. 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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