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NAVY | DRB | 2008_Navy | ND0801465
Original file (ND0801465.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080707
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) 20010131 - 20020130                 Active:

Period of Service Under Review:
 Date of Enlistment: 20020131      Period of Enlistment : Years Extension         Date of Discharge: 20030829
Length of Service: Year Months 7 D ays         Education Level:         Age at Enlistment:      AFQT: 32
 Highest Rank/Rate: E-2 Evaluation Marks: Performance: 2.0 ( 1 )    Behavior: 2.0 ( 1 )        OTA: 1.67
Awards and Decorations (per DD 214):     Rifle Pistol

Periods of UA/CONF: Exact times of UA are NFIR

 NJP:
- 20030418 : Article 86 (Unauthorized absence)
Article 92 (Failure to obey a lawful order)
 Awarded: Suspended:

- 20030523: Article 86 (UA), 3 specifications
 Awarded: Suspended:

- 20030703: Article 92 (Failure to obey a lawful order – underage drinking)
Article 134 (Drunk and disorderly conduct)
Awarded: REST EPD FOP Suspended: NONE
SCM: SPCM: CC:

Retention Warnings:
- 20030418: For violation of UCMJ Articles 86 and 92

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 Representation:     From Congress member:

Other Documentation (Describe):


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

Applicant’s Issues
1. Desires to reenlist.
 2. Better provide for his family.
3. Chain of command did not assist him.
4. Youth and immaturity.
5. Personal problems impacted his decisions.
6. Punishment was unduly harsh.
7. Post service conduct.
Decision

Date: 20081023            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall 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 s and Employment/Educational Opportunities regarding .

Issue 3: ( ) . The Applicant claims he did not receive proper counseling and guidance from senior members of his chain of command to help him deal more appropriately with his issues. He also states his unit mislead him regarding his ability to reenlist. 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 one retention warning and 3 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 92 (Failure to obey a lawful order), and Article 134 (Drunk and disorderly conduct). These violations are considered serious offenses and could rate a punitive discharge and confinement if adjudicated and awarded as part of the sentence upon conviction by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

The Applicant failed to say exactly what his issues at the time were, who he went to for assistance and why they refused him. He submits no statements from peers or co-workers which would verify his claim that he did not receive assistance when asked. The Applicant signed an ACKNOWLEDGEMENT OF RIGHTS TO BE EXERCISED OR WAIVED DURING SEPARATION PROCEEDINGS letter, in which he acknowledged he was being recommended for an “Under Other Than Honorable Conditions” characterization of service and the possible negative consequences of that type of discharge. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention his unit misled him during his separations out-processing. Based on the lack of documentary evidence, the Board determined that an upgrade was not warranted.

Issue 4-5: ( ) . The Applicant states personal problems and his inability to deal with them properly contributed to his misconduct. He further states he has grown and matured since his discharge when he was 20 years old. While the Applicant may feel his youth contributed to his poor decision making skills, 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 Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s failure to meet the requirements of the Naval Service and falls far short of what is required for an “Honorable” characterization of service. Additionally, he does not provide any documentation to support his claim of personal problems, what he did to attempt to resolve them, and how this failure lead to his misconduct. The Board determined an upgrade would be inappropriate.



Issue 6: (Equity) RELIEF NOT WARRANTED. The Applicant feels his punishment was too harsh and unjust. As stated above in Issue 3, the Applicant’s record of service was marred by a retention warning and numerous violations of the UCMJ which could have earned him a punitive discharge, Additionally, his earned Performance and Behavior marks of 2.0 and his Overall Trait Award of 1.67 are far below the marks necessary to be awarded an “HONORABLE” discharge. Considering the fact the Applicant could have been refereed to a court-martial for his offenses, it appears his chain of command took into account his youth and personal problems when they chose to administratively separate him instead of sending him to court-martial. A review of available records reveals nothing to indicate that the Applicant’s discharge was in any way inconsistent with the established standards of discipline in the United States Navy. The Board determined an upgrade would be inappropriate.
Issue 7: (Equity) RELIEF NOT WARRANTED. The Applicant states he now is mature, married, has a child, and has grown as a person. Outstanding post-service conduct, 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, is considered. The key word here is “Outstanding”. The Board is looking for actions that go beyond simply daily living. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements. 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 did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade. The Applicant's efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and without having the necessary post service documentation to review an upgrade would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process, t he Board found

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 86, and 92.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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