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Decision Text

NAVY | DRB | 2008_Navy | ND0801006
Original file (ND0801006.rtf) Auto-classification: Denied

ex-SHSA, USN
Current Discharge and Applicant’s Request
Application Received: 20080401
Characterization of Service Received:
Narrative Reason for Discharge: PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP) 20020323 - 200 20903                 Active:

Period of Service Under Review:
 Date of Enlistment: 20020904      Period of E nlistment : Years Extension          Date of Discharge: 20070718
Length of Service : Yrs M on ths 15 D a ys         Education Level:         Age at Enlistment:       AFQT: 47
Highest Rank /Rate : SHSN Evaluation marks: NFIR Performance: NFIR         Behavior: NFIR    OTA: NFIR
 Awards and Decorations ( per DD 214): CAR GCM NDSM GWOTEM GWOTSM SSDR

NJPs :
20070227 : Art icle 86 ( Unauthorized absence), 2 specifications :
                  - Specification 1: Unauthorized absence 20061215 to 20061221 (6 Days ) ,
                  - Specification 2: Unauthorized absence 20070125 to 20070126 (1 Day ) .
Awarded : . Susp : . [Extracted from case file] .

20070622: Art icle 134 ( Failure to pay just debts), 3 specifications.
Awarded: . Susp : . [Extracted from case file].

C C : Pending in Norfolk General District Court for failure to return property. [Extracted from case file].

Retention Warnings:
20060405 : For failure to pay just debts in a timely manner to Fast Auto Loans in the amount of $968.00.

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) :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 .


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

Applicant’s Issues

1.       Had almost completed his enlistment .
2.       Lack of assistance from his command.
3.       In-service performance.

Decision

Date: 20 08 0821             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

 , 2 and 3 : ( ) The Applicant contends his discharge should be upgrade because he had almost completed his enlistment at the time of discharge, the command failed to assist him in get ting a budget, and he was a hard worker. 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 eviden ce submitted by the Applicant. Th e Applicant's misconduct is documented in h is service record, which is marred by one retention warning for failure to pay just debts in a timely manner and , and two non - judicial punishment s for the U niform C ode of M ilitary J ustice violations of Articles 86 ( Unauthorized absence ) , 3 specifications; and Article 134 , Failure to pay just debts , 3 specifications. These violations are considered serious in nature and could have resulted in a punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. Pursuant to MILPERSMAN 1910-140 a member may be separated prior to the expiration of their enlistment if during the current enlistment they have two or more non-judicial punishments and violated a NAVPERS 1070/6l3 warning prior to the processing. The evidence of record indicates the commanding officer acted within his authority and requirements of the MILPERSMAN in separating the Applicant prior to the expiration of his enlistment.

T he evidence of record also contradicts the Applicants contention the command failed to assist him with developing a budget. Based on the NAVPERS 1070/6l3 warning of 5 April 2006, the Applicant was notified that assistance in correcting his performance deficiencies , namely his failure to pay his debts , was available from his chain of command and the Command Financial Specialist. The Applicant presents no evidence to support his contention that the command failed to assist with his financial matters or that the Command Financial Specialist denied his request for assistance when, and if, he asked for it .

In regard to in-service performance, the Applicant’s performance evaluations were not found in the record, nonetheless his misconduct is clearly documented . The Applicant’s conduct, which forms the primary basis for determining the character of h is service, reflects h is 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 the characterization of service to an honorable. The Board determined 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


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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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