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NAVY | DRB | 2008_Navy | ND0801796
Original file (ND0801796.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20080827
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)        20011015 - 20011024     Active:  

Period of Service Under Review:
 Date of Enlistment: 20011025     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020920      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 66
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20020530 :      Article 86 (UA), 4 specifications
         Spec 1-3: Fail to go and go from appointed place of duty
         Spec 4: UA 0550-0645, 20020528
          Awarded: Suspended:

- 20020711 :       Art icle 86 (UA -Failure to go and go from appointed place of duty ), 3 specifications
         Article 91 (Disrespect), 5 specifications
         Article 92 (Fail to obey a lawful order)
          Awarded : CCU Susp ended :

- 20020801:      Article 91 (Disrespect), 3 specifications
         Article 134 (Communicate a threat)
         Awarded: Suspended:


- 20020809 :       Article 86 (Fail to go to appointed place of duty)
         Article 90 (Willfully disobeyed a lawful order)
         Article 91 (Disrespect)
          Awarded: Suspended:

- 20020905 :      Article 80 ( Attempting to break restriction)
         Article 92 (Violate a lawful general order)
          Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20020530 :       For unauthorized absence/fail to go to appointed place of duty and false official statement.

NDRB Documentary Review Conducted (date):        20040224
NDRB Documentary Review Docket Number:   ND03-00765
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 :

Pending results of hearing.
Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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 90 (Wil l fully disobey a lawful order) Article 91 (Disrespect), Art;icle 92 (Failure to obey a lawful order), and 134 (Communicating a threat).



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

Applicant’s Issues

 1. Improperly charged under the Uniform Code of Military Justice.
2. Post-conduct service.

Decision

Date: 20090923   Location: Washington D.C.       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMMISSION OF A SERIOUS OFFENSE.
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 five non-judicial punishments (NJPs) in a 10 month period for violations of the Uniform Code of Military Justice (UCMJ), Article 80 (Attempting to break restriction), Article 86 (Unauthorized absence (UA) – 8 specifications), Article 90 (Willfully disobey a lawful order), Article 91 (Disrespect – 9 specifications), Article 92 (Failure to obey a lawful order or regulation – 2 specifications) and Article 134 (Communicating a threat). The Applicant submitted a copy of an administrative separation processing notice of 13 August 2000 indicating the reasons for administrative processing were misconduct due to a pattern of misconduct and the commission of a serious offense as evidenced by his retention warning and five NJPs during this current enlistment. The Applicant did not acknowledg e receipt on this copy, nor did he complete the election of rights section of the notice . However, per his DD Form 214, the Applicant was subsequently discharged based on the commission of a serious offense and assi gn ed a separation code of HKQ ( indicating he waived his right to an administrative separation board ) . The presumption of regularity of government affairs was applied in the absence of a complete service record and administrative separation package.

: (Decisional) ( ) . The Applicant made a personal appearance before the NDRB without representation, seeking an upgrade to Honorable and contending he was improperly charged under the UCMJ because there were multiplicious violations that were inconsistent with the UCMJ that did not meet the legal elements required to support a charge and there was not sufficient evidence to prove the UA charges . When questioned about his 5 NJP’s the Applicant was vague or nonresponsive at times but did admit t hat h e was found gu ilt y of these charges at the NJP proceeding s. The Applicant failed to provide evidence or testimony to support any of his contentions and cited numerous cases but did not state how they were relevant to his case. Furthermore, t he record of evidence indicates that he filed two NJP appeals in August 2002 and was denied relief. The NDRB determined , based on the Applicant’s testimony and record of service , tha t there was sufficient evidence to prove the offenses for which the Applicant was found guilty at NJP and that the discharge for misconduct due to a commission of a serious offense was proper based on the Applicant’s retention warning and f ive NJPs during this enlistment . Additionally, the Board determined that the awarded discharge characterization was appropriate and that an upgrade was not warranted b ased on the frequency and seriousness of the offenses committed by the Applicant, length of service and lack of mitigating circumstances .

Issue 2: (Decisional) (Equity) . The Applicant also requested an upgrade based on post-service conduct. The Applicant testified that he has been married for tw o years, performed volunteer work with children at the local YMCA and is pursuing a law degree online. He presented an acceptance letter from his college for the Board’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 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 some credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent 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 limited 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 COMMISSION OF A SERIOUS OFFENSE.


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 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 Board for Correction of Naval Records (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 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 NDRB 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 NDRB B oard 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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