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NAVY | DRB | 2008_Navy | ND0801186
Original file (ND0801186.rtf) Auto-classification: Denied

ex-BMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080508
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (PATTERN OF MISCONDUCT)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19820607 - 19820614              Active:            19820615 - 19860603
                                                                                          19860604 - 19900924
                                                                                          19900925 - 19940627

Period of Service Under Review:
 Date of Enlistment: 19940628     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960524               Highest Rank/Rate:       BM2

Length of Service : Y ear s M onth s 27 D a ys       
Education Level:        AFQT: 29
Evaluation M arks:        Performance:      3.5 ( 3 )   Behavior: 3.7 ( 3 )         OTA: 3.60         4.0 evals
         Performance:     2.0 ( 1 )  Behavior: 2.0 ( 1 )        OTA: 1.86         5.0 eval
Awards and Decorations ( per DD 214):      (2) SWASM (2) (3)

Periods of UA /C ONF :

NJP :
19951212 :         Art icle 134 (Safety violation).
         Awarded : . Susp : . Suspension vacated 19960319.

19960320 :        Article 92 (Dereliction of duty).
         Article 86 (Failure to go to appointed place of duty).
          Awarded: . Susp: .

19960503 :        Article 86 (Absent from appointed place of duty).
         Awarded: . Susp: .
S CM :

SPCM:

C C :

Retention Warnings:

19960321 :         For failing to adhere to the rules of the Uniform Code of Military Justice as evidenced by your conviction at nonjudicial punishment for violation of Article 92: Dereliction of duty, Article 86: Failure to go to appointed place of duty.


Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

Other Documentation (Describe) :

NDRB Documentary Review Conducted (date):        19970421
NDRB Documentary Review Docket Number:   ND97-00509
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Applicant Testified: Yes
Applicant Available for Questions: Yes
Witnesses: Yes
Observers:      





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

Applicant’s Issues

1. The Under O ther Than H onorable (OTH) discharge does not accurately reflect his service.
2. Post- service conduct.

Decision

 Date: 20090429            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


 :( ) . The Applicant had American Legion representation at his personal appearance hearing and contends the OTH does not accurately reflect his character of service and his discharge should be upgraded based on in-service performance and post-service conduct . 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge i f such change is warranted. The Applicant’s record of service was marred by one retention warning and three NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Failure to go to appointed place of duty , 2 specifications ) , Article 92 ( Dereliction of duty ) , and Article 134 ( Safety violation ) . The Applicant stated he was sick in quarters for one of the Article 86 specifications and couldn’t remember the circumstances on the second Article 86 charge. In regard to the dereliction of duty charge, the Applicant testified he completed all qualifications but was unable to pass the oral boards. The Applicant testified under oath he knowingly secured a line on the deck in violation of the safety regulatio ns, but felt that his shipmates would have been in greater danger by his failure to act.

The Applicant has been employed in his brother ’s roofing business , works as a superintendent at his apartment complex (since 1997), obtained certification as a n electrician, volunteered 1000 hours transporting patients at the Veteran’s Administration Hospital . The Applicant’s brother also testified regarding his employment, family, good character and referred to the Applicant as his “hero . ” The Board determined that in view of the seriousness and frequency of the Applicant's misconduct a change in the discharge characterization to Honorable is not warranted. However, t aking into consideration the Applicant’s testimony, testimony of his brother, service record, offenses committed, length of service , and post-service conduct the Board voted unanimously to upgrade the characterization of service to General (Under Honorable C onditions) , but the narrative reason shall remain Pattern of Misconduct.

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 proper and equitable at the time of the discharge, but based on the Applicant's post-service conduct an upgrade is warranted.
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 - 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 .

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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