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NAVY | DRB | 2008_Navy | ND0801228
Original file (ND0801228.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080513
Characterization of Service Received:
Narrative Reason for Discharge: - COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN 3630600 (COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19920930 - 19921102                 Active:

Period of Service Under Review:
Date of Enlistment: 19921103       Period of E nlistment : Years Extension          Date of Discharge: 19950209
Length of Service : Y ea rs M on ths 07 D a ys         Education Level:        Age at Enlistment:       AFQT: 31
Highest Rank /Rate : AN     Evaluation M arks: Performance: 2.9 ( 2 )    Behavior: 2.9 ( 2 )         OTA: 2.90
Awards and Decorations ( per DD 214): , WITH BRONZE STAR ,

Periods of UA /C ONF :

NJPs :
19930928 : Art icle 134 (Drunk and incapacitated for proper performance of duties).
 Awarded : , . Susp ended: .
199 4 0215 : Art icle 134 , 2 specifications :
         - Specification 1: Wrongfully possess alcoholic beverage while under age of 21.
         - Specification 2: Dru nk and disorderly conduct .
 Article 86 (Failure to go at the appointed time to appointed place of duty).
 Article 92 (Drunk on duty).
 Awarded : , . Susp ended: .
19940628 : Art icle 90 ( Willful disobedience of Commissioned Officer by f ailing to muster with Master-At - Arms);
Article 128 (Assault by biting and striking with his hands and feet) ;
Article 134 (Drunk and disorderly).
 Awarded : , , . Susp ended: .

19941122 : Art icle 112a (Wrongfully used cocaine).
Awarded : , , . Susp ended: .

S CMs :

SPCMs:  

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 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 s of the UCMJ, Article s 90, 92, 112a, 128, and 134.


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

Applicant’s Issues

 1. Youth and Immaturity.
2. Medical condition.
3 . Unfair discharge.
4. Post service conduct.

Decision

Date : 20 08 0 918             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

 Issues 1-2: (Equity) RELIEF NOT WARRANTED. The Applicant contends his and a medical condition mitigate s his misconduct. While he may feel th ese factors were 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 due to youth , immaturity , or a medical condition . 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 service was marred by four non - judicial punishments (NJP) for multiple violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 90, 9 2, 112a, 128, and 134. Violations of UCMJ Article s 90, 92 , 112a, 128 and 134 are considered serious offenses for which a p unitive discharge is authorized if adjudicated by either a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The Board determined there was no evidence , based on the Applicant’s claim , which mitigated his misconduct and an upgrade would be inappropriate.

Issue 3 : (Equity) RELIEF NOT WARRANTED. The Applicant implies he was treated unfairly by his command. As stated in the above paragraph, 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 bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly .
The Applicant’s misconduct covered a 14-month period from September 1993 until November 1994; more than enough time for the Applicant to adjust and correct his behavior to be in line with Navy standards.

W hen a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under “H onorable ” conditions. An “U nder O ther T han H onorable ” conditions 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 Applicant’s continued misconduct and NJP’s constitutes the significant negative aspect in his limited career and was the cause of his discharge. The Board determined an upgrade would be inappropriate.

Issue 4: (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 service under review, is considered. 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. To warrant an upgrade to “Honorable” 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 limited documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the limited time served and the UCMJ violations involved.

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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