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NAVY | DRB | 2008_Navy | ND0801892
Original file (ND0801892.rtf) Auto-classification: Denied

ex-RPSR, USN
Current Discharge and Applicant’s Request
Application Received: 20080916
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) 20000316 - 20000508        Active:

Period of Service Under Review:
 Date of Enlistment: 20000509     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030912      Highest Rank/Rate: RPSN
Length of Service : Y ear s M onth s 28 D a ys
Education Level:        AFQT: 55
Evaluation M arks: Performance: 2.3 ( 3 ) Behavior: 2.0 ( 3 ) OTA: 2.21

Awards and Decorations ( per DD 214):      Rifle NDSM NUC

Lost Time (per DD 214): (20030413-20030719)

SCM: CC:

NJP :
- 20001121 : Art icle 91 ( Insubordinate conduct towards a Chief Petty Officer )
Awarded : Susp ended :

SPCM:

- 20030711 : Art icle 89 (Disrespect towards a Commissioned Officer), 2 specification s
Article 90 (Willfully disobeying a Commissioned Officer)
 Article 91 (Disrespectful toward a Non-Commissioned Officer)
Sentence : CONF FOR 120 DAYS RIR

Retention Warning Counseling:

- 20001122 : For violation of UCMJ Art 91 ( Insubordinate conduct towards a Chief Petty Officer )
- 20001208: F ailed to complete HMMWV driving course due to academic failure.
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:              

Related to Post-Service Period (cont):

        Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

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 89, Article 90, and Article 91 .


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

Applicant’s Issues

 1. Not adequately represented by military attorney.
2. Discharge was based on bigotry and cruel treatment.

Decision

Date: 20090114             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 contends he was not adequately represented by his military counsel. 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 re cord of service was marred by two retention warnings, one NJP, and on e SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect toward superior commission officer); Article 91 (Willfully disobeying a commission officer); and Article 91 (Disrespect toward a superior noncommissioned officer) . Violation of Article 89, Article 90, or Article 91 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The Applicant was not sentenced to a punitive discharge at his Court-Martial but was processed for administrative separation following his conviction. The Applicant offers no further explanation of his contention of inadequate representation.

The NDRB rejects the Applicant ’ s contention as without merit b ecause e vidence in the available record does not support it. Most significantly, the Applicant pleaded guilty to the charges discussed above at his Court-Martial. Before a military judge can accept a plea of guilty, he must be convinced the accused is pleading guilty willingly and is satisfied with the counsel provided . Based on the judge ’ s acceptance of the Applicant’s guilty plea, the Board determined th e judge was satisfied th ose criteria had been met. The Board determined the awarded discharge characterization was app r opriate and a n upgrade based on inadequate representation would be inappropriate.

: ( ) . The Applicant contends his discharge was “based upon bigotry and cruel treatment.” The NDRB rejects the Applicant’s contention based on lack of supporting evidence or further explanation . The record clearly shows the Applicant was discharged following a number of incidents for serious misconduct after being made the subject of a SPCM . The available record of evidence does not show any improper or inequitable treatment of the Applicant , nor does he provide documented evidence showing his discharge was the result of bigotry and cruel treatment by his command . The Board determined the awarded discharge characterization was appropriate and a n upgrade based upon the Applicant’s contention would be inappropriate.
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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