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NAVY | DRB | 2008_Navy | ND0801797
Original file (ND0801797.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20080903
Characterization of Service Received:
Narrative Reason for Discharge: COMMISSION OF SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN 3630620

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP) 19920317 - 19920324        Active:

Period of Service Under Review:
 Date of Enlistment: 19920325      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 19941208      Highest Rank/Rate: FN
Length of Service: Years Months 13 D ays
Education Level:         AFQT: 93
Evaluation Marks: Performance: 2.6 ( 4 ) Behavior: 2.7 ( 4 ) OTA: 2.70

Awards and Decorations (per DD 214):

Period of UA: 19940910-19941014 (34 DAYS)

 NJP:
- 19920730:      Article 86 (UA, 1120-1123, 19920727)
          Awarded: Suspended:

- 19930719:      Article 113 (Misbehavior of sentinel)
          Awarded: Suspended:

- 19930927:      Article 86 (UA)
         Awarded: Suspended:

- 19941021:      Article 86 (UA)
         Article 87 (Missing ship’s movement)
         Article 112a (Drug use)
          Awarded: RIR Suspended:

- 19941206:      Article 92 (Disobeying a lawful order)
          Awarded: CONF FOR 3 DAYS Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:
- 19920730: For violation UCMJ, Article 86, unauthorized absence for 3 minutes.

- 19930721: For misbehavior of a sentinel, which resulted in non-judicial punishment

- 19930927: For unauthorized absence, which resulted in non-judicial punishment


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:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violations of the UCMJ, Articles 86 (Unauthorized absence); 87 (Missing movement); 92 (Failure to obey an order or regulations); 112a (Drug abuse) and 113 ( Misbehavior of sentinel).



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

Applicant’s Issues
1. Youth and immaturity.

Decision

Date: 20081211   Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
Discussion
        
: ( ) . The Applicant claims his youth and immaturity lead to his misconduct. 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 is marred by 3 retention warnings and 5 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 87 (Missing movement); Article 92 (Failure to obey an order or regulations); Article 112a (Drug abuse) and Article 113 ( Misbehavior of sentinel). These offenses are serious in nature; collectively they easily could have warranted a punitive dischagre. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge, but opted instead for an administrative discharge.
The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions) or to “Honorable”. For the edification of the Applicant, w hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.
A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.
An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board acknowledges the misconduct of the Applicant as being a significant departure from the conduct expected from a service member which is not indicative of either a “General (Under Honorable Conditions) or an “Honorable” discharge characterization. There was no evidence in the Applicant military record, nor was any provided, which demonstrated the Applicant was not responsible for his conduct due to either youth or immaturity.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides a discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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. Besides the Applicant’s statement on/attached to his DD-293, he provided two additional references: one from his father, a Veteran, and one from his church. However, to warrant a “General or Honorable” discharge, the Applicant’s efforts need to be more encompassing. Supporting documentation that could have been submitted for consideration by the Board include, but is not limited to: evidence of a verifiable long-term employment record; evidence of a drug-free existence; documentation of educational pursuits; certification of non-involvement with civil authorities (police and DMV records); evidence of continuing volunteer or church service, and documentation of financial stability or evidence of good standing with financial institutions or credit card companies. 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.

At this time, based on lack of documentation, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate. Should the Applicant wish to appear before the Board in person to present his case it is recommended he contact one of several Veteran organizations, such as the American Legion to assist in this process, especially since he has less than a year left for the NDRB to hear the case, via personal appearance. As stated above, there is no guarantee of an upgrade even if you provide all the documentation described as each case is reviewed on its own merits.

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, 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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