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NAVY | DRB | 2008_Navy | ND0801318
Original file (ND0801318.rtf) Auto-classification: Denied

ex-ATAR, USN
Current Discharge and Applicant’s Request
Application Received: 20080603
Characterization of Service Received:
Narrative Reason for Discharge: SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20030626 - 20031031              Active:
Inactive: USNR (DEP)     200312 18 - 20040125

Period of Service Under Review:
Date of Enlistment: 20040126     Period of E nlistment : Years Extension         Date of Discharge: 20071012
Length of Service : Y ear s M onth s 17 D a ys      Education Level:        Age at Enlistment:      AFQT: NFIR
Highest Rank /Rate : ATAN   Evaluation M arks: Performance:    NFIR Behavior: NFIR OTA: NFIR
Awards and Decorations ( per DD 214):      NDSM GWOTSM SSDR NEM EAWSI

NJPs :
20041209 : Art icle 92 (Failure to obey a lawful order)
Article 109 (Destruction of property other than military property)
 Awarded : Susp ended :

20070601 : Art icle 134 (Unlawful entry)
Awarded : Susp ended :

20070912 : Art icle 92 (Dereliction of duties)
Awarded : Susp ended :

S CMs :

SPCMs:

C C :

Retention Warnings:
20041209 : For your NJP on this date for VUCMJ, Article 92-Failure to obey a lawful general order, Article 109
(Destruction of p roperty other than military property of United States )

20070604 : For your NJP on 20070601 for VUCMJ, Article 134 ( Unlawfully enter Naval Base San Diego by
climbing the fence )

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:       

Related to Post-Service Period (cont) :

         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 1910-142, SEPARATION 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 of the UCMJ, Article 92 - Failure to obey lawful order and Article 134- Unlawful entry onto base .




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

Applicant’s Issues

 1. Discharge unjust due to multiple attempts made to prevent mishap.
2. Post service conduct.

Decision

Date: 20 08 1016          Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .
Discussion

 : ( ) . The Applicant contends his discharge was unjust and therefore should be upgraded . He feels it was unjust because he was assigned duty watch while also working night shifts and attending TAPS separation orientation classes during the afternoons. He claims he made several attempts with in his chain of command to have his duty watch changed due to his exhaustion from working night shift s and attending the TAPS classes. However, he contends his request s were ignored and as a result he fell asleep while on watch and subsequently was charged with dereliction of duty and sent to NJP .

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 two retention warnings and three NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Articles 92 ( Failure to obey a lawful order and de reliction of duty ) , 2 specifications; Article 109 ( Destruction of property other than military ); and Article 134 (U nlawful entry onto base ) . The violations are considered serious in nature and could have resulted in a punitive discharged and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The Applicant submitted statements from the Petty Officer of the Watch, another watch stander and a copy of the watch bill for the time period in question. T he Board determined the evidence submitted by the Applicant pertaining to his watch standing does not mitigate the misconduct which resulted in his discharge.

The Applicant has requested an upgrade in his characterization to “Honorable”. For the edification of the Applicant , an “H onorable ” characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A “G eneral ( U nder H onorable C onditions) ” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet established standards expected by Sailor’s. Based on the nature and frequency of the misconduct committed by the Applicant the Board determined the discharge was just and an upgrade w ould be inappropriate.

: ( ) . The Applicant also contends since transitioning from the Navy he has held a full time job , enrolled in college and will be entering a Water Treatment Intern Program soon. 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as

examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. 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’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the misconduct which precipitated the discharge. The Board determined an upgrade based on post service conduct 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, 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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