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NAVY | DRB | 2009_Navy | ND0900242
Original file (ND0900242.rtf) Auto-classification: Denied

ex-RPSA, USN
Current Discharge and Applicant’s Request
Application Received: 20081118
Characterization of Service Received: OTHER THAN HONORABLE
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (PATTERN OF MISCONDUCT)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19920821 - 19930622     Active:  

Period of Service Under Review:
Date of Enlistment: 19930623     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970325      Highest Rank/Rate: RPSN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.4 ( 3 )      Behavior: 3.4 ( 3 )        OTA: 3.47        4.0 evals
         Performance: 1.8 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.13        5.0 evals
Awards and Decorations ( per DD 214):      Rifle Pistol J CGSOR CGMUC (2)

Periods of UA /C ONF :

NJP :
- 19950619 :       Art icle 134 (Obtaining service under false pretenses)
         Awarded : Susp ended :

- 19950929 :       Article 86 (UA)
         Article 90 (Willfully disobeying superior commissioned officer)
         Article 92 (Failure to obey written order or regulation)
         Awarded: Susp ended :

- 19960112 :      Article 86 (UA)
         Awarded: CCU FOR 30 days Suspen ded: Appealed 19960116

- 19960918 :      Article 92 (Violate military protective order by failing to remain away from spouse)
         Awarded: Suspended: Appealed 19960919


S CM : SPCM: C C :

Retention Warning Counseling :

- 19950615 :       For lack of military bearing/appearance, customer service skills need to be improved, you show no initiative and indifference when senior enlisted RPs try to assist you, you incurred over $50 in unauthorized personal long distance phone calls on a government phone.

- 19960903 :       For spouse abuse and assault on 19960818 in that, you chased your spouse with a knife and on 19960826, you punched the window of the vehicle you spouse was operating. These actions constitute spouse abuse.


Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 :

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 s of the UCMJ : Article 86 (U A); Article 90 (Willfully disobeying superior commissioned officer) ; Article 92 (Failure to obey an order or regulation) and Article 134 (Obtaining service under false pretenses).



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

Applicant’s Issues

 1. Reenlistment opportunities .
2. Employment/educational o pportunities .
3 . Service benefits .
4. Unjust discharge .

Decision

Date : 20 0 9 0223             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall OTHER THAN HONORABLE .
By a vote of the Narrative Reason shall .
Discussion

 : 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 re garding .

Issue 4: ( ) . The Applicant contends his discharge was unjust due to family issues dealing with his ex-wife and how the command dealt with the situation, while he was trying to be compliant wit h a Military Protective Order. 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 two retention warnings and four NJP’s for violations of the Uniformed Code of Military Justice (UCMJ): Article 86 (U A); Article 90 (Willfully disobeying superior commissioned officer) ; Article 92 (Failure to obey an order or regulation) and Article 134 (Obtaining service under false pret enses). These violations were considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The fact the Applicant had 4 NJP’s within a 15 month period was what ultimately determined the pattern of misconduct. The Applicant did not provide any documentation in support of his contention the discharge was unjust, nor was there anything in the record to indicate the discharge was unjust. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
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; attending or completion of higher education (official transcripts) 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.

Besides the Applicant s statement on the DD Form 293, he provided several references of character on his behalf. However, t o 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. 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, Disabled American Veterans , etc. that are 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


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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