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NAVY | DRB | 2009_Navy | ND0900153
Original file (ND0900153.rtf) Auto-classification: Denied

ex-SHSN, USN
Current Discharge and Applicant’s Request
Application Received: 20081028
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: USNR (DEP)     19990714 - 19990822     Active: 

Period of Service Under Review:
 Date of Enlistment: 19990823      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20040616       Highest Rank/Rate: SHSN
 Length of Service: Year(s) Month(s) 24 D ay(s)
Education Level:         AFQT: 35
Evaluation Marks:        Performance: 2.5 ( 4 )     Behavior: 2.0 ( 4 )        OTA: 2.41

Awards and Decorations (per DD 214):     NEM

Periods of UA/CONF:

NJP:
- 20001026:      Article 86 (UA), 2 specifications
         Awarded: Suspended:

- 20010705:      Article 86 (Failure to go at prescribed time to appointed place of duty), 5 specifications
         Awarded: Suspended: Vacated 20010712

- 20010712:      Article 92 (Dereliction of duty)
         Awarded: 3 DAYS Suspended:

- 20011116:      Article 86 (UA), 2 specifications
          Article 86 (Failure to go at prescribed time to appointed place of duty)
          Awarded: Suspended: (RIR Vacated 20011116)

- 20020117 :      Article 86 (UA)
         Awarded: Suspended:

- 20040517:      Article 86 (UA)
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20010809:      For appearing before the Commanding Officer on 20010705 for failing to go at the prescribed time to your appointed place of duty


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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .




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

Applicant’s Issues

 1. Discharge handled improperly.

Decision

Date: 20090223            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
Discussion

 : ( ) . Applicant contends her discharge was handled improperly in that her medical and dental evaluations were not completed and she was never given a reason for Captain’s mast or discharge. The Applicant did not submit any documentation for the Board’s consideration. 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. T he Applicant’s service was marred by one retention warning, and five non-judicial punishment (NJP) proceedings for violations of the Uniform Code of Military Justice (UCMJ): Articles 86 (UA) and Article 92 (Dereliction of duty).
In regard to the Applicant’s contention she was never given a reason for her Captain’s mast or discharge, the record reflects she was awarded NJP on 17 May 2004 and signed the Report and Disposition of Offenses which outlined the specific violations committed by the Applicant. This report also contained a record of all previous offenses committed by the Applicant during her enlistment. Additionally, the Administrative Separation Processing Notice of 17 May 2004 reflects the Applicant was notified of the reason for discharge due to a pattern of misconduct and commission of a serious offense. The Applicant acknowledged receipt of the administrative separation notice on 26 May 2004 and initialed changes to the document on 04 June 2004. The record also reflects the Applicant elected to exercise the right to counsel and did in fact meet with a military attorney who also signed the notification letter. Based on the foregoing evidence the Board concluded the Applicant’s contentions are without merit.
There is no evidence in record or provided by the Applicant to support the contention her discharge was handled improperly by the command. Furthermore, there was no evidence available to determine when the medical and dental screenings were completed prior to the Applicant’s discharge. The Board determined even if the Applicant was unable to get medical and dental care until after being discharged this would not excuse her misconduct or serve as justification for an upgrade. The Applicant has requested an upgrade in her discharge characterization to “Honorable”. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. Based on the frequency and seriousness of the Applicant’s misconduct and lack of mitigating evidence the Board determined the awarded discharge characterization was appropriate. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects her failure to meet the established standards of conduct of a U. S. Sailor and is not reflective of Sailor’s receiving an “Honorable” discharge. An upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, 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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