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NAVY | DRB | 2008_Navy | ND0801398
Original file (ND0801398.rtf) Auto-classification: Denied

ex-ETSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080618
Characterization of Service Received:
Narrative Reason for Discharge: PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19860530 - 19860618                 Active: 19860619 – 19880614 HON

Period of Service Under Review:
Date of Enlistment: 19880615     Period of E nlistment : Years 36 M onths Extension       Date of Discharge: 19931025
Length of Service : Y ear s M onth s 11 D a ys     Education Level:       Age at Enlistment:     AFQT: 76
Highest Rank /Rate :       ET3       Evaluation M arks: Performance:    3.9 ( 5 )   Behavior: 3.9 ( 5 )         OTA: 3.92
Awards and Decorations ( per DD 214): NAVY”E” NDSM SSDR (2) QUALIFIED SUBMARINES (SS) GCA

NJP :
- 19930922 : Art icle 86 (U A) 19930821 to 19930918 , 28 days
Awarded : Susp ended :

S CM : SPCM: C C :

Retention Warnings:
- 19930812 : For bad check writing and failure to pay just debts.

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 5, effective 5 March 1993 until 21 July 1994), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 .


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

Applicant’s Issues

 1. Discharge inequitable because based on one incident in 76 months of service.
2. Not offered legal representation during his court martial or financial counseling.
Decision

Date : 20 08 1023   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

 : ( ) The Applicant contends his characterization of discharge should be upgraded because it was based on one incident in 76 months of service . The Applicant further contends his discharge should be upgraded based on in-service performance and the fact he was experiencing financial and emotional hardship related to a divorce .
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 one retention warning for bad check writing and failure to pay just debts and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 ( U A, for 28 days ) . Unauthorized absence is considered a serious offense for which confinement and a punitive discharge could have been awarded if adjudicated and awarded as part of a sentence by a special or general court-martial. However, with only one incident less than 30 days the command opted for an administrative discharge rather than referral to a court-martial.

The Applicant has requested an “Honorable” upgrade to his discharge characterization. An “H onorable ” characterization of service is warranted w hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel. 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 NJP for UA does not meet the acceptable standards for conduct required for an “Honorable” discharge. However, a fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. The Board considered the following as mitigating factors: the length of the unauthorized absence was under 30 days, the overall trait average was 3.92 on a maximum scale of 4.0, financial hardship and post service matters. Based on the foregoing evidence the Board voted to upgrade the character of the discharge to “G eneral ( U nder H onorable C onditions) ”; however, the narrative reason for discharge shall not change.

: ( ) . The Applicant contends he was not offered legal representation during his court martial and was not offered financial counseling during his financial hardship. There is no evidence contained in the record to support the Applicant’s contention regarding a court-martial. The Commanding Officer, Navy Recruiting District, Jacksonville, transmittal letter of 29 September 1993, which provides a summary of military offenses committed by the Applicant during his enlistment, reflects the Applicant had one NJP on 22 September 1993 and was administratively processed for misconduct due to a pattern of misconduct and recommended for separation. Based on the foregoing evidence of record, t here is no indication that the Applicant was court-martialed during this enlistment and he has not provided any documentation to prove otherwise. Therefore the Board has determined this allegation lacks merit.

In regard to the allegation that the command failed to provide financial counseling during the Applicant ’s hardship, this statement is contradicted by the evidence of record which reflects that on 12 August 1993 the Applicant signed a Administrative Remarks, NAVPERS 1070 -613 warning , notifying him of deficiencies in his performance - bad check writing and failure to pay just debt s , receipt of numerous counseling’s concerning financial obligations, and an ord er to the Family Service Center for


Financial Counseling with no improvement in the fulfillment of financial obligations. Based on the foregoing evidence, the Board has determined this allegation also lacks merit.

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 but not 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, 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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