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NAVY | DRB | 2009_Navy | ND0900150
Original file (ND0900150.rtf) Auto-classification: Denied

ex-AOAA, USN
Current Discharge and Applicant’s Request
Application Received: 20081028
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20030630 - 20030707     Active:  

Period of Service Under Review:
Date of Enlistment: 20030708     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051107      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 3.00 (1)

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP : SPCM: CC: Retention Warning Counseling :

S CM :
- 20050928 :       Art icle 86 (UA ), from 20050607 to 20050916 (101 days)
         Article 87 ( Missing movement), 3 specifications
         Sentence :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 1910-142 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
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 :


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

Applicant’s Issues

 1. Discharge inequitable based on a one-time isolated incident.
2. Unable to receive help or legal counsel.
 3. Victim of falsified government documents.

Decision

Date: 20 0 9 0218             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .
Discussion

 Issue 1 : ( ) . The Applicant contends the discharge was inequitable because his actions were based on a one-time isolated incident and he had no previous mis conduct in the 2+ years prior to the incident. 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 r ecord of service was marred by one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, absence without leave from 20050607 to 20050916) (101 days) and Article 87 ( M issing movement – 3 specifications). These are considered serious offenses which could have resulted in a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a punitive discharge but did hold a SCM and subsequently processed him for an administrative discharge.

The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant se paration from the Navy to maintain proper order and discipline. For the edification of the Applicant, a “ Gener al (Under Honorable Conditions) ” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The award of a “General (Under Honorable Conditions)” discharge is not indicative of U. S. Sailor’s who enter into an unauthorized status for 101 days and miss ship movement. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded ch aracterization was appropriate and an upgrade would be inappropriate.

Issue 2 : ( ) . The Applicant con tends “ no one seemed to want to be bothered with my problem , so leaving UA was my only way to search for legal representation.. . ” The Applicant was stationed in the USS RONALD REAGAN (CVN 7 6 ), an aircraft carrier with approximately 5,680 personnel on board . The Applicant had a number of people he could have spoken to besides his division shipmates or his upper chain of command – chaplains, medical doctors, counselors, JAG officers , to name a few. The Board could not identify the Applicant’s problem and t he Applicant did not provide any documentation to support his claim of seeking assistance or treatment for his problem during his UA period. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 3 : ( ) . The Applicant contends his chief had falsified online documents. The NDRB noted the record of evidence clearly shows t he Applicant waived his right to request a n administrative separatio n board , to consult with qualified counsel, and to submit a written statement . If the Applicant felt someone had falsified online documents, it was his obligation to contest those charges at the time the y were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him. The Applicant submitted no evidence to support his contention; therefore the NDRB must rely upon the presumption of regularity in the conduct of


government affairs. The NDRB determined the applicant’s claim was without merit and the awarded discharge was appropriate.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable 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. Docum entation to help support a post- service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending or completion of higher education (official transcripts) and documentation of alcohol non-dependency and 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant ’s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf. To warrant an upgrade the Applicant’s post - service efforts need to be more encompassing to mitigate the misconduct which precipitated the discharge . The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the charact erization of service received, “ Under Other Than Honorable Conditions ” , was an appropriate characterization considering the length of service and the UCMJ violations involved , and based on the limited post- service documentation provided an upgrade would be inappropriate.
The Applicant remains eligible for a personal appearance hearing . Should the Applicant feel at some later time his post - service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance in preparing such a presentation.

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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 s of the UCMJ, Article 86 and Article 87.


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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