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NAVY | DRB | 2008_Navy | ND0801804
Original file (ND0801804.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20080903
Characterization of Service Received: OTHER THAN HONORABLE
Narrative Reason for Discharge: DUE TO A PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19961105 - 19970720        Active:

Period of Service Under Review:
Date of Enlistment: 19970721     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000519     Highest Rank/Rate: FN
Length of Service : Y ear s M onth s 29 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks: Performance: 2.2 ( 4 ) Behavior: 1.4 ( 5 ) OTA: 1.93

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : SCM: SPCM: CC: Retention Warning Counseling :

NJP :
- 19971217 : Art icle 86 (UA)
Article 91 (Willfully disobey a lawful order)
 Awarded : Susp ended :

- 19990325 : Article 9 1 ( Failure to obey a lawful order)
Article 9 2 ( Dereliction of duty )
Article 107 (False official statement)
 Awarded : Susp ended :

- 20000315 : Article 86 ( UA, a bsent from unit )
Awarded : Susp ended:

Counseling Record: 2
- 19980424: DIV LCPO has received complaints about your personal hygiene
- 19980914: F ailure to comply with personal hygiene standards

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:       

Related to Post-Service Period (cont):
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, 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 91- Willfully disobey a lawful order , Article 107 – False official and statement .




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

Applicant’s Issues

 1. Reenlistment and employment.
2. Young and unable to comprehend the consequences of an “Under O ther T han H onorable ” discharge (OTH).

Decision

Date: 20 08 1211             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (PATTERN OF MISCONDUCT) .
Discussion

 : The Applicant is seeking an upgrade for reenlistment and employment purposes. He contends the reenlistment code is barring him from obtaining employment. 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 s concerning , and Reenlistment/
RE Code for additional information regarding .

: ( ) . The Applicant is seeking an upgrade and contends he was young and unable to comprehend the damage that would be caused by an OTH. 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 2 retention warnings and 3 NJP’s for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 ( U A) , Article 91 ( Willful disobedience of a lawful order ) , Article 92 ( Dereliction of duty ) , and Article 107 ( False official statement ) . These violations could have resulted in a punitive discharge and confinement if a djudicated and awarded as part of a special or general court-martial. The command did not pursue a punitive dis c ha r ge but opted for an administrative discharge based on a pattern of misconduct.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. Of particular concern to the Board was the documented long history of the Applicant’s inability to maintain basic personal hygiene . The majority of the Applicant’s infractions centered on and related to poor personal hygiene and keeping his room clean ; his UA in 2000 was for leaving his job site without permission to retrieve pain medication. A pre-mast investigation was conducted on the Applicant and i n a m emorandum dated 29 February 2000, the investigating officer states the Applicant has been a discipline problem since reporting and exhaustive counseling has failed to produce expected improvement (the Board assumes in the area of personal hygiene and overall cleanliness of his living space) . A review of the service record indeed supports the efforts made by the command leadership to instill the value of cleanliness and hygiene into the Applicant; a value he was never able to achieve while in the Navy. The investigating officer recommended among other action, administrative separation and noted that a psychological evaluation was pending. There is no indication that this psychological evaluation was performed ; t he medical records were not available for review. Based on the fact the Applicant’s transgressions were minor in nature and centered on his personal hygiene rather than more grievous and violent violations , the Board vote d unanimously to upgrade the character of the discharge to “G eneral (U nder H onorable C onditions ) ” , but the narrative reason for discharge shall not change.

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, 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 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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