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NAVY | DRB | 2008_Navy | ND0801126
Original file (ND0801126.rtf) Auto-classification: Denied

ex-AOAR, USN
Current Discharge and Applicant’s Request
Application Received: 20080428
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 to:

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20000624 - 20010605              Active:
         USNR (DEP)       20010606 - 20010722

Period of Service Under Review:
Date of Enlistment: 20010723      Period of E nlistment : Years Extension          Date of Discharge: 20050517
Length of Service : Yrs M on ths 25 D a ys   Education Level:         Age at Enlistment:       AFQT: 41
Highest Rank /Rate : AOAN   Evaluation M arks: Performance: 3.0 ( 1 )     Behavior: 1.0 ( 1 )          OTA: 1.67
Awards and Decorations ( per DD 214): , ,

Periods of UA : 2005 0417-20050517 (29 days, 20 hrs), Discharged in absentia.

NJPs :
20030227 : Art icle 92 (F ailing to obey a written order), 4 specifications.
Awarded : . Susp : .

20030815 : Article 92 (Failure to obey an order by wrongfully missing pre -trial muster), 11 specifications
Awarded : , . Susp - .
S CMs :
20030331 : Article 86 (Unauthorized absence), 2 specifications:
         - Specification 1: 20040926 to 20041018, 22 days, 45 minutes ,
         - Specification 2: 20041025 to 20050325, 151 days, 1 hour, 45 minutes.
 Sentence : , , .

20030820 : Article 86 (Unauthorized absence ). From 20030424 to 20030713, 80 days, 45 minutes ,
Article 87 (Miss ing movement) 3 specifications.
Sentence : (20030820-200300914 26 days) , .
 CA Action: 20030929 , Approved and ordered executed 20030929.
SPCMs:  
20030207 : Article 86 (9 specifications) :
         - Specification 1 : Unauthorized absence from 20021126 to 20021220 , 24 days , 45 minutes ,
         - Specification 2 : Miss pretrial muster 0700, 20021117 ,
         - Specification 3 : Miss pretrial muster 2000, 20021116 ,
         - Specification 4 : Miss pretr ial muster 1130, 20021116,
         - Specification 5 : Miss pretrial muster 0630, 20021116,
         - Specification 6 : Miss pretrial muster 2000, 20021114,
         - Specification 7 : Unauthorized absence 20021024 to 20021113; 20 days , 45 minutes .
         - Specification 8: Unauthorized absence 20021008 to 20021023 , 15 days , 45 minutes ,
         - Specification 9 : Unauthorized absence 20020829 to 20020902 , 11 days , 45 minutes ,
Article 134 : (Break ing restriction).
 Sentence : CONF FOR 60 DAYS (20030207 to 20030216 10 days) , RESTR FOP RIR.
         
CA Action : Sentence is approved and orde red executed, 20030526. Credited 49 days conf .

C C :      

Retention Warnings: .

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 1910-142, 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, 87, and 92.


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

Applicant’s Issues

 1. Immaturity.
2. Unfair d ischarge.
3 . Post s ervice conduct .

Decision

Date : 20 08 09 11             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

 Issues 1- 2 : (Equity) RELIEF NOT WARRANTED. The Applicant contends his mitigates his misconduct. While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions based on youth or immaturity. 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. The Applicant’s record of service was marred by one Special Court Martial, two Summary Court Martial, and for violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 87 and 92. Violations of Articles 86, 87and 92 are considered serious offenses, punishable by a bad conduct or dishonorable discharge and up to imprisonment. When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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. The Board determined, based on the extensive UCMJ violations, an upgrade would be inappropriate based on the foundation of youth and immaturity as a mitigating factor or that the discharge was unfair in anyway.

Issue 3: (Equity) RELIEF NOT WARRANTED. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of servi ce under review, is considered during Board reviews . Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements. The Applicant should be aware completion of these items alone does not guarantee an upgrade from 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.

The Applicant provided a personal statement and as evidence of post-service accomplishments. However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined based on the documentation provided the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served in the Navy and the seriousness and number of the UCMJ violations involved and 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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