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NAVY | DRB | 2008_Navy | ND0801230
Original file (ND0801230.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20080515
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) 20031105 - 20031117                 Active:

Period of Service Under Review:
 Date of Enlistment: 20031118      Period of Enlistment : Years Extension         Date of Discharge: 20051214
Length of Service: Years Months 27 D ays       Education Level:        Age at Enlistment:      AFQT: 35
Highest Rank/Rate:       SN        Evaluation Marks: Performance:   3.0 ( 1 )  Behavior: 2.0 ( 1 )        OTA: 2.71
Awards and Decorations (per DD 214): NDSM GWOTSM SSDR
NJPs:
20040504: Article 86 (Failure to go to appointed place of duty)
Article 92 (Failure to obey order or regulation)
Awarded: Suspended:

20041111: Article 86 (Failure to go to appointed place of duty)
Article 92 (Failure to obey a lawful order)
 Article 134 (Disorderly conduct, drunkenness and incapacitation for performance of duties through
wrongful indulgence in intoxicating liquor).
 Awarded: CCU FOR 30 DAYS Suspended:

20050121: Article 134 (Disorderly conduct, drunkenness)
Article 91 (Disrespect toward a petty officer)
Awarded: Suspended:

SCMs:

SPCM:

CC:

Retention Warnings: .

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:              


Related to Post-Service Period (cont):

Additional Statements:

         From Applicant:          From Representation:     From Congress member:

Other Documentation (Describe):

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION 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 .

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, Articles 91, 92 , and 134.


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

Applicant’s Issues

 1. Youth and immaturity lead to his misconduct.
2. He was discriminated against since there was fraternization onboard his ship.
3. Post service conduct.

Decision

Date: 20081002            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

 Issue 1: ( ) . The Applicant contends his youth and immaturity mitigates his misconduct. 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 three non-judicial punishments for violations of the Uniform Code of Military Justice, Articles 86, 91, 92 and 134 which occurred over a one and a half year period. The violations are considered serious in nature and could warrant a punitive discharge and confinement if adjudicated and awarded as part of a conviction at a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

While the Applicant may feel his youth and immaturity was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to youth or immaturity. The record indicates the Applicant was 20 years old when he enlisted; 2 years older than the average recruit. Additionally, he was 22 years old at the time of his last non-judicial punishment .

An “Honorable” discharge is appropriate when the quality of the service member’s service has met the standards of acceptable conduct and performance of duty for military personnel. An “Under Other Than Honorable Conditions” discharge is warranted when the basis for separation is commission or omission of an act which constitutes a significant departure from the conduct expected of a service member. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s departure from the conduct and performance expected of a Sailor and falls far short of what is required for an upgrade in the characterization of service. The Board determined an upgrade or change would be inappropriate.

: ( ) . The Applicant claims fraternization onboard the USS CHUNG HOON (DDG 93) led to his Captain’s Mast for disrespect to a chief petty officer . The Applicant alleges the CPO he refused to obey was engaged in an inappropriate relationship with a more senior CPO. Writing him up for charges that led to Captain’s Mast was an act of retaliation by the CPO. The Applicant provides no additionally evidence to support his claim aside from his personal statement. If the Applicant felt fraternization was occurring onboard the USS Chung Hoon, it was his responsibility to bring it to the Command Master Chief’s attention or to address it during his Captain’s Mast. There is no evidence in the record to indicate this happened. Regardless of the relationship between the two senior petty officers in the Applicant’s chain of command, he was given a lawful order which he refused to obey. Additionally, by his own admission, he used disrespectful language when addressing the CPO. While the alleged fraternization may have frustrated the Applicant, it cannot be used as an excuse to mitigate his misconduct. The Board determined an upgrade or change would be inappropriate.
: ( ) RELIEF NOT WARRANTED. The Applicant request an upgrade based on his post service record. The NDRB 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 during Board reviews. The key word here is “Outstanding”. The Applicant provided limited documentation of post service accomplishments. He submitted only four letters of recommendation, two of which are unsigned. The

Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community /church service, proof of sobriety and certification of non-involvement with civil authorities; college transcripts or acceptance notification. 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 Board determined the documentation provided by the Applicant 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, Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, t he Board found the discharge was proper and equitable.


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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