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NAVY | DRB | 2008_Navy | ND0801372
Original file (ND0801372.rtf) Auto-classification: Denied

ex-GSMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20080611
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)      NONE               Active: 19960424 - 20000420

Period of Service Under Review:
Date of Enlistment: 20000421      Period of E nlistment : Years 00 Extension      Date of Discharge: 20030212
Length of Service : 2 Y ear s 9 M onth s 22 D a ys    Education Level: 12       Age at Enlistment: 19     AFQT: 70
Highest Rank /Rate : GMS2   Evaluation M arks: Performance:    4.0 ( 1   )   Behavior: 4.0 ( 1 )         OTA: 3.71
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

S CM :

SPCM:
20020122 : Art icle 85 ( Desert ion)
Article 87 ( Missing ship’s movement )
Sentence : 31 days confinement and RIR

C C : Per Commanding O fficers Transmittal ltr of 02202002 , Applicant was cited for having an outstanding Federal warrant for
 his arrest; directed to return to USS MILIUS (DDG 69).

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:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Other Documentation (Describe) :





Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 86, Unauthorized absences over 30 days and A rticle 87 , Missing ship’s movement .




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

Applicant’s Issues

 1. Seeking to reenlist .
2. Characterization of service doesn’t fit. DD - 214 reflects no lost time and given a separation code of HKD .
3 . Isolated incident in 5 years of faithful service .

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 (COMMISSION OF A SERIOUS OFFENSE) .
Discussion

 : The Applicant is seeking an upgrade in order to reenlist . 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 , for additional information regarding .

: ( ) . The Applicant contends his discharge characterization does not fit because his DD214 doesn’t indicate he had lost time , yet he was given a separation code of HKD. 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. Despite the fact the Applicant’s DD214 does not reflect the lost time , the NAVPERS 1070/713 of 21 November 2001 provided by the Applicant refl ects he had an unauthorized absence of one month and 12 days . Additionally, the court memo of 22 January 2002, also provided by the Applicant , indicates he had 40 days of lost time. Therefore, his argument the characterization of his service is inappropriate because the DD - 214 does not reflect his lost time is without merit since there is sufficient documentation of lost time in his record as noted in the documents previously discussed. In regard to the issue pertaining to the separation code , per MILPERSMAN 1910-152 when a member is processed for separation based on misconduct due to commission of a serious offense ( e.g., Desertion ) and waives their right to a board this separation code is to be used . The record reflects the A pplicant was notified of an administrative separation due to commission of a serious offense as evidenced by his SPCM conviction for unauthorized absence over 30 days . The Applicant was provided the opportunity to present his case to an administrative board, but he waived that right, thus accepting the discharge recommended in the letter of notification. Based on the aforementioned evidence , the NDRB determined the discharge and charac terization to be just, proper, and appropriate; an upgrade would be inappropriate.

: ( ) The Applicant also contends his characterization of service should be upgraded based on the fact his misconduct was an isolated incident in five years of faithful service . For the edification of the Applicant, d espite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by conviction at a special court-marital for unauthorized absence in excess of thirty days, thus substantiating the misconduct for which he was separated. Based on the length of the unauthorized absence and the lack of mitigating circumstances , the NRDB found the Applicant’s service wa s equitably characterized. The Board determined an upgrade 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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