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NAVY | DRB | 2008_Navy | ND0801237
Original file (ND0801237.rtf) Auto-classification: Denied

ex-EMFA, 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: US N R (DEP)      20020627 - 20030618              Active:

Period of Service Under Review:
Date of Enlistment: 20030619      Period of E nlistment : Years Extension   Date of Discharge: 20060801
Length of Service : Y ear s M onth s 13 D a ys Education Level:      Age at Enlistment:      AFQT: 46
Highest Rank /Rate : EMFN   Evaluation M arks: Performance: NFIR      Behavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214): , ,

Periods of UA /C ONF :

NJP :
- 20030 722 : Art icle 92 (Failure to obey)
 Article 128 (A ssault consummated by battery)
Article 134 (Communicat ing a threat)
Awarded : Susp ended :

-20060420: Article 86 ( UA, f ailure to go)
Article 92 (Failure to obey an order or regulation )
 Awarded: NFIR
- 20060629 : Art icle 91 (Insubordinate condu ct)
Article 92 (Failure to obey)
Article 107 (False official statement)
Article 117 (Provoking speeches)
Article 128 (Assault)
Article 134 (Drunken n ess)
Awarded : , , Susp ended :

S CM : S PCM:      C C :

Retention Warnings:
       
- 20030722 : For NJP 20030722
- 20060 4 20 : For NJP 20060420








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) :

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 : Article 91 (Insubordinate conduct) ; Article 92 (Failure to obey an order or regulation) ; Article 107 (False official statement) , Article 117 (Provoking speeches), Article 128 (Assault consummated by battery) , Article 134 (Communicat ing a threat), and Article 134 (Drunkenness) .




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

Applicant’s Issues

 1. Employment opportunities .
2. Family p roblems.
3 . Post service medical problems.

Decision

Date : 20 08 0925            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

 : 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 contends his family issues and post service medical problems mitigate 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 two retention warnings and three NJP’s for violations of the Uniformed Code of Military Justice (UCMJ): Article s 91 (Insubordinate conduct) ; Article 92 (Failure to obey an order or regulation) ; Article 107 (False official statement) ; Article 117 (Provoking speeches) ; Article 128 (Assault consummated by battery) ; Article 134 (Communicat ing a threat) and Article 134 (Drunkenness) . These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge.

Besides the Applicant ’ s statement on the DD Form 293, he provided additional medical evaluation and documents as evidence on his behalf. The Board considered all the documentation regarding this case and determined the Applicant had serious medical issues that were incurred prior to his entry into the Navy . These medical issues may not have fully manifest ed during his enlistment. Therefore, the Board determined the Applicant ’ s medical issues mitigate some of his misconduct, especially when he was put under stressful conditions such as the death of his half-brother. The Applicant requested an upgrade to “Honorable.” 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. Due to the significant negative aspects in the Applicants record of service, t he Board determined that the medical evaluations were sufficient enough to only support an upgrade in the discharge characterization to “ General (Under Honorable Conditions) ”.

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 the discharge was proper at the time of issue but not equitable in light of mitigating evidence.


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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