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NAVY | DRB | 2008_Navy | ND0801133
Original file (ND0801133.rtf) Auto-classification: Denied

ex-RMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080501
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: NONE             Active:

Period of Service Under Review:
Date of Enlistment: 19920324      Period of E nlistment : Years Extension         Date of Discharge: 19960308
Length of Service : Yrs M on ths 04 D a ys   Education Level:         Age at Enlistment:      AFQT: 88
Highest Rank /Rate : RM3    Evaluation M arks: Performance: 4.0 ( 2 )    Behavior: 4.0 ( 2 )         OTA: 4.00
Awards and Decorations ( per DD 214): NDSM SASM SSDR NEM

NJPs :    
19960124 : Art icle 86 (Unauthorized absence ) from 0700, 19951129 to 19951204 (5 Days ) ;
         Article 87 (Missing movement ) on 19951129 .
Awarded : . Susp - .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 19951129-19951204 (5 Days) ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 and 87.


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

Applicant’s Issues

 1 . Isolated incident in over 7 years of active and reserve service.
2 . Post service conduct.
3 . Reenlistment opportunity.

Decision

Date : 20 08 0911             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE) .
Discussion

Issue 1 : ( ) . The Applicant stated his discharge was based on one isolated incident after three years of honorable service in the Kansas Army National Guard and 3 years 9 months service in the U . S . Navy. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline . 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. T he Applicant’s service was marred by his violation of the Uniform Code of Military Justice, Article 86 and 87 which constitutes the “commission of a serious offense”; the discharge basis in this case. V iolation of Article 87 is punishable by a dishonorable discharge and up to 2 years of imprisonment if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

The Applicant’s service was marred by only one 5 day unauthorized absence (UA) period in over 7 ½ years of combined active and reserve service. This UA was a direct result of trauma experienced when the submarine he was stationed on, the USS Drum, made contact with a foreign cargo container ship in Hong Kong. Damage to the submarine was so extensive the crew was transferred to other vessels; the Commanding Officer was relieved; and the submarine shortly thereafter was retired from active sea service. The Applicant was subsequently ordered to duty on another submarine. He states after the accident he was uncomfortable remaining on a submarine. He had what he determined a type of breakdown and as a result of self induced stress and anxiety over reporting to his new submarine entered into a UA status . After 5 days he voluntarily returned to military control and sought mental health assistance to help him overcome his fear of continued duty on board a submarine. The Applicant desired to remain in the Navy and made this know to his command and sought duty on a surface ship. However, his rating did not allow for this transfer. A review of his service record indicated h e had no formal counseling entries and his average evaluation marks for performance and behavior were 4.0 and 4.0 respectively.

The characterization of service is a description of the total service provided during the member’s enlistment. A “G eneral (U nder H onorable C onditions ) ” discharge is awarded when service has been for the most part honest and faithful, but some significant negative incident occurred which made awarding an honorable discharge inappropriate. An “Under Other Than Honorable Conditions” d ischarge 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. While the Applicant’s service was not totally honorable, the Board determined the puni shment was more severe than warranted based on the mitigating circumstance of the p sychological trauma he had while serving o n a submarine involved in a collision and his hesitation to remain serving on submarines. Based on these facts, the Board determined an upgrade would be appropriate.

Issue 2: ( ) . 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. 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 service 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.

T he Applicant said in his personal statement he was gainfully employed and has had no run-ins with the police. H e has had no legal problems since his discharge and has held various positions in established companies. However, he provides no supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade. The Applicant's efforts need ed to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record ; documentation of community /church service ; certification of non-involvement with civil authorities ; e vidence of financial stability; or statements from his references . The Board determined an upgrade founded solely on post-service conduct would not be warranted based on the lack of stronger documentation of post-service accomplishments.

Issue 3 : 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 , specifically the paragraph concerning s , regarding .

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record En tries, Discharge Process , t he Board found The Board recommended an upgrade to “ G eneral (Under Honorable Conditions)” discharge characterization.


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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