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NAVY | DRB | 2008_Navy | ND0801168
Original file (ND0801168.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080506
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: USNR (DEP) 20000325 - 20000424                 Active:

Period of Service Under Review:
 Date of Enlistment: 20000425      Period of Enlistment : Years Extension         Date of Discharge: 20050425
Length of Service: Years Months 01 D ays        Education Level: Age at Enlistment:
AFQT: 62          Highest Rank/Rate: MSSN   Evaluation Marks: Performance: 2.4 ( 5 )   Behavior: 1.4 ( 5 )        OTA: 2.23
Awards and Decorations (per DD 214): (2) (3)

 Periods of UA/CONF:

NJPs:
20020605 : Article 128 (Assault).
 Awarded: . Suspended: Suspension vacated 20020809

 20020809 : Article 92 (Failure to obey other lawful order)
 Awarded: Suspension:

SCMs:

SPCMs:

CC:

Retention Warnings:
20010723: For failure of the Physical Readiness Test (PRT) .

20020605 : For Captain's Mast on 20020605 for Article 128 (Assault consummated by a battery). Action of
Commanding Officer: Reduction to the next inferior pay grade of E-2; forfeiture of $619.00 pay per
month for 1 month (forfeiture of $619.00 pay per month for 1 month is suspended for 6 months) .
20040608 : For failure to meet Physical Readiness Test (PRT) standards .
20050201 : For failure to meet body composition assessment standards .









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 Representation:              From Member of Congress:

         - Letter from Mike M., North Carolina, U.S. House of Representatives, U.S. Congress dated 2 May 2008

Other Documentation (Describe):

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
19 June 2005, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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. Wants his G.I. Benefits to go to college.
2. Served honorably and should have received an “Honorable” discharge.
3. Post service conduct.

Decision

Date: 20080918        Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMPLETION OF REQUIRED ACTIVE SERVICE .
Discussion

 : 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 , regarding .

: ( ) . The Applicant feels receiving a “General (Under Honorable Conditions)” discharge was a direct result of his not being able to complete the required physical tests. He claims he was on a ship and unable to work out. 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 four retention warnings and for violation of the Uniform Code of Military Justice, Articles 92 (failure to obey other order) and 128 (assault). These violations are considered serious offenses punishable by a bad conduct and up six months imprisonment if adjudicated as part of the sentience upon conviction by a special or general court-martial. The command did not pursue a punitive discharge.
When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. Per Naval Military Personnel Manual, 1910-104, a member separated upon expiration of enlistment or fulfillment of service obligation is eligible for a characterization of “Honorable”, unless as “General (Under Honorable Conditions) is warranted on the basis of the Enlisted Performance Evaluation System; a member is eligible for a General (Under Honorable Conditions), if during the current enlistment, the member’s final evaluation average is 2.49 or below.

The Applicant service record reflects his final evaluation trait average for this period of enlistment was 2.33. The Applicant’s overall trait average for this enlistment is below that required for an “Honorable” conditions discharge and therefore the “General (Under Honorable Conditions)” characterization was appropriate. The Board determined an upgrade or change would be inappropriate

 : ( ) . The Applicants states he is a productive member of society and this should be recognized The Board is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered. 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 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.

The Applicant states he has been employed by McDonalds for eight years and completed his management certification and submitted three letters of reference. The Board did note one letter from Brunswick County, NC sheriff cited no criminal record in Brunswick County and the letter from the McDonald’s supervisor indicated the author had known the Applicant since the age of 15 when she hired him as a cashier. To warrant an upgrade to “Honorable”, the Applicant’s post service efforts need to be more encompassing. While the Board members acknowledge the post service of the Applicant and applauds his efforts, he could have produced additional evidence such as documentation of community /church service, a copy of McDonald’s management certificate and admission letter to college or recent grade transcripts from educational classes taken. The Applicant should have full understanding completion of these items alone does not guarantee an upgrade. The Board reviewed the documentation provided and noted the positive efforts of the Applicant. However, in light of the documents provided the Board determined it still did not mitigate the misconduct that resulted in the characterization of discharge 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, provided 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 granted 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.
Employment/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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