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NAVY | DRB | 2009_Navy | ND0900219
Original file (ND0900219.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20081107
Characterization of Service Received:
Narrative Reason for Discharge: PATTERN OF MISCONDUCT or commission of a serious offense
Authority for Discharge:         MILPERSMAN 3630600 (PATTERN OF MISCONDUCT) or (commission of a serious offense)

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19950726 - 19960409     Active: 
         USNR (DEP)       19960410 - 19960415

Period of Service Under Review:
 Date of Enlistment: 19960416      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 19961119       Highest Rank/Rate: AR
Length of Service: Year(s) Month(s) 04 D ay(s)
Education Level:         AFQT: 45
Evaluation Marks:        Performance: NFIR         Behavior: NFIR    OTA: NFIR

Awards and Decorations (per DD 214):     NONE
Periods of UA/CONF:

NJP:
- 19960913 :      Article 90 (Willful disobedience of commissioned officer)
         Article 91 (Willful disobedience of noncommissioned officer)
         Article 134 (False or unauthorized pass offense)
         Awarded: Suspended: Suspension vacated 2 19961102
- 19961102:      Article 134 (Breaking restriction)
          Article 85 (Desertion - UA from 1600, 19950915-1500, 19961030 (44 days, 23 hours))
          Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 19960913 : For violations of UCMJ, Article 90 (Assaulting or willfully disobeying a Superior Commission Officer),
Article 91 (Willful disobedience of Noncommissioned Officer) and Article 134 (False or unauthorized pass
offenses).

Administrative Corrections to the Applicant’s DD 214

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

         “HKA ”
         “ PATTERN OF MISCONDUCT ”


Administrative Corrections to the Applicant’s DD 214 (cont)

The NDRB will recommend to the Commander, 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 Representation:     From Congress member:

Other Documentation:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 3 October 1996 until 11 December 1997),
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 90, Article 91 and Article 95.


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

Applicant’s Issues

 1. Omit or delete Separation Code and Narrative Reason for Separation (Blocks 26 & 28) of his DD Form 214.
2. Reenlistment opportunity and written recommendation for reenlistment.
3. Honorable service in Navy Reserves.
4. Denial of constitutional rights.
5. Discharge inconsistent with standards of discipline.
6. Discharge inequitable in light of circumstances relating to the issues resulting in disciplinary actions and leading to the
ultimate discharge of the Applicant.
7. Post-service conduct.

Decision

Date: 2009 0226             Location: Washington D.C.        R epresentation :

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

 : ( ) AS REQUESTED - CORRECTION IS WARRANTED. The Applicant requests both the Separation Code (block 26) and Narrative Reason for Discharge (block 28) on his DD Form 214 be omitted or deleted. The DD Form 214 is an important record of service used by the Services for administrative processing and enlistment/reenlistment determination; by other Agencies in determining eligibility for employment or other benefits. Therefore, the DD Form 214 must be accurate and complete. The NDRB notes the Applicant’s DD-214 incorrectly lists multiple bases for his separation. The record of evidence shows the Applicant was properly notified of discharge proceedings based on the reasons of “Pattern of Misconduct” and “Commission of a Serious Offense.” The Separating Authority should have determined the primary basis for the separation when approving the recommended discharge. The record shows, however, the Separating Authority directed the Applicant be discharged for both reasons. The NDRB determined this administrative error in no way compromises the propriety or equity of the Applicant’s discharge. He was properly notified of discharge proceedings based on serious misconduct substantiated at two NJPs. The NDRB therefore determined the remedy for this administrative error is to change the Narrative Reason for separation to the more favorable of the two reasons, “Pattern of Misconduct”, and to change the Separation Code to the corresponding code of “HKA.” The NDRB emphasizes these changes were determined necessary upon review of the Applicant’s service record and are not based upon the Applicant’s DD-293 request. The Applicant’s request for omission or deletion of this information on the DD 214 cannot be accomplished but a correction to the administrative error can occur and therefore relief is warranted.

: 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 concerning , regarding these Issues.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his honorable service in the Navy Reserves. 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 one retention warning and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 85 (Desertion); Article 90 (Willfully disobeying a commissioned officer); Article 91 (Willfully disobeying a petty officer) and Article 134 (Breaking restriction). Violation of Article 85, 90 or 91 is considered a serious offense which could have resulted in a punitive discharge and confinement 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 court-martial but opted instead


for an administrative discharge. The record of evidence indicates the Applicant was mistakenly transferred to the Individual Ready Reserve (IRR) upon separation from active duty for misconduct. Members separated for misconduct are typically
separated from the Service entirely and not transferred to the IRR. The record of evidence does not show the Applicant ever participated in the IRR or the Selected Reserve in any way. The NDRB determined the Applicant’s successful service as an inactive member of the IRR is not sufficient grounds to warrant an upgrade to his discharge. The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issues 4: ( ) . The Applicant contends he is entitled to a discharge upgrade due to an error in command procedures or discretion which prejudiced his constitutional rights. The Applicant bears the burden of overcoming the Government’s presumption of regularity through the presentation of substantial and credible evidence to support his issue. The Board found no evidence in the record, nor has the Applicant produced any evidence, to support the contention the Applicant was treated improperly or that his constitutional rights were violated; likewise, there is nothing in the record to indicate an inequitably in his separation process occurred. In addition, the command’s actions were consistent with statutory or regulatory authority and the Board cites the presumption of constitutionality that attaches to statutes and regulations. The record indicates the Applicant did not desire to consult with counsel and waived his right to submit a statement on his behalf and request an Administrative Board. The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issues 5: ( ) . The Applicant contends his punishment was inconsistent with the standards of discipline. As noted in Issue 3, violations of Article 85, 90 or 91 are considered serious offenses which could have resulted in a punitive discharge and confinement 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 court-martial but opted instead for an administrative discharge. For the edification of the Applicant, the record of misconduct could have resulted in substantially more severe punishment, including confinement for up to five years, total forfeiture of pay and a dishonorable discharge if convicted by a General Court-Martial. The Board finds the command was consistent with the standards in their awarding of NJP and an upgrade would be inappropriate.

: ( ) . The Applicant contends his discharge was “unequitable in light of circumstances relating to the issues resulting in disciplinary actions and leading to the ultimate discharge of the Applicant.” The Applicant did not submit any evidence to support his claims or provide amplifying statements explaining the circumstances relating to the misconduct. The Applicant also never submitted a statement during his administrative separation to which the Board could identify the circumstances. The Board determined an upgrade would be inappropriate.

Issue 7: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. 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. Documentation 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; and documentation of 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.

The Applicant provided evidence showing he completed one semester of classes in college. While the Board applauds the Applicant for continuing his education, the Board determined the evidence of post-service conduct did not mitigate the misconduct which precipitated the discharge. To warrant an upgrade the Applicant’s post-service efforts need to be more encompassing. 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 characterization 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.
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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