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NAVY | DRB | 2008_Navy | ND0801536
Original file (ND0801536.rtf) Auto-classification: Denied

ex-GSMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20080715
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)        19880408 - 19880515     Active:  

Period of Service Under Review:
Date of Enlistment: 19880516     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19930702      Highest Rank/Rate: GSM3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.08

Awards and Decorations ( per DD 214):      SOSCGR W/BRONZE STAR WITH 2 BRONZE STARS

Periods of UA /C ONF : UA: 0730, 19921229-0745, 19921231 (2 days, 15 minutes) / CONF:

NJP :
- 19921003 :       Art icle 92 (Dereliction of duty)
         Awarded : Susp ended :

- 19930122 :       Article 86 (UA - 2 hours, 19 minutes on 19930113)
         Awarded: Suspended:


- 19930528 :      Article 92 (Dereliction in the performance of duties)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19930311 :       For failure to obey other lawful order.
NDRB Documentary Review Conducted (date):        19960314
NDRB Documentary Review Docket Number:   ND96-00623
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.


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 :

Oth er Documentation :


Applicant Testified:
Applicant Available for Questions:
Witnesses:      
Observers:      

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


 1. The Other Than Honorable (OTH) discharge was too harsh.
 2. Seeks p ost- service conduct consideration

Decision

Date: 20090831   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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. 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 record includes one retention warning and three non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence (UA) – 2 hours) and Article 92 (Dereliction of duty – 3 specifications). Per the Commander’s (USS STEVEN W. GROVES (FFG 29)) l etter of 02 June 1993, the Applicant was notified that he was being considered for an administrative separation by reason of misconduct due to a p attern of m isconduct as evidenced by his retention warning and three NJPs during his current enlistment. The Applicant signed the a dministrative b oard p rocedure a cknowledgment on 02 June 1993 and waived all of his rights except the right to obtain copies of documents that would be forwarded to the separation authority. He was subsequently discharged based on a p attern of m isconduct and assigned an Other Than Honorable characterization of service .


: (Decisional) ( ) . The Applicant made a personal appearance before the NDRB represented by an American Legion representative contending his characterization of service should be upgraded to “Honorable” and the narrative reason changed to “Secretarial authority” because the Applicant’s discharge was too harsh based on his in-service performance, which included a six - month deployment to the Persian Gulf and no record of misconduct prior to reporting to the USS STEVEN W. GROVES (FFG 29). When questioned about his 3 NJP’s the Applicant admitted to the misconduct and indicated the following: 1) the first NJP occurred while he was deployed to the Red Sea - one of the officers found him asleep while on watch, 2) the second NJP was for an UA, which resulted from his failure to provide a recall phone number or address while he was away from the ship for the weekend, and 3) the third NJP resulted from him sleeping during working hours and not being aware that a new order regarding “knock off ship’s work” had been implemented. Based on the Applicant’s testimony, a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, the Board determined that the awarded discharge characterization was appropriate in light of the nature and frequency of the offenses committed and that an upgrade was not warranted. Additionally, the NDRB found the Applicant’s in-service performance, was insufficient to mitigate the misconduct which resulted in his discharge.
In regard to the request to change the narrative reason to “ Secretarial A uthority ” , the re is no evidence in the record nor provided by the Applicant to support this request . Based on the Applicant’s retention warning and three NJPs during this enlistment, the NDRB determined that there was sufficient evidence to support the discharge for misconduct due to a pattern of misconduct.

Issue 2: (Decisional) (Equity) . The Applicant’s representative also requested an upgrade based on post-service conduct. The Applicant testified that he has been working for a civil engineer firm for the past two years ; he submitted a pay stub for August – September 2008, a college transcript, character reference from his brother-in-law and resume’ for the NDRB’s consideration. 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. 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. 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and frequency of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and medical records, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. 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 accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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