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NAVY | DRB | 2009_Navy | ND0900245
Original file (ND0900245.rtf) Auto-classification: Denied

ex-BM3, USN
Current Discharge and Applicant’s Request
Application Received: 20081117
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)      19980826 - 19990629     Active:            19990630 - 20021114

Period of Service Under Review:
Date of Enlistment: 20021115     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070223      Highest Rank/Rate: BM3
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 34/49
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 1.67

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20060609 :      Article 92 (Failure to obey an order or regulation)
                 Awarded: RIR FOP RESTR/EPD SUSP: RIR FOP        

S CM : SPCM: C C : NFIR Retention Warning Counseling : NFIR

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present,
Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

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. Seeks r eenlistment opportunities .
2. The Applicant states his discharge was inequitable

Decision

Date : 20 0 9 0821             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (CIVILIAN CONVICTION) .
Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. 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 is reflected by a Nonjudicial Punishment (NJP) for violation of the Uniform Code of Military Justice, Article 92 (Fail to obey an orders or re gulation). In addition, the Applicant was charged by civilian authorities for ca rrying a concealed weapon, at which time he did not possess a concealed weapons permit. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain good order and discipline —the offense committed by the Applicant met that standard . The NDRB did not have access to the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with qualified coun sel, submit a written statement and request an Administrative Board. Although t he Applicant claims he appeared before an administrative separation board that re commended r etaining him on active service , the Board (NDRB) was unable to verify this claim or the administrative separation board’s final decision . The Applicant should note that an administrative board ’s decision is a recommendation which may not be supported by the commander and separating authority. Relief denied.

: (Non-decisional) 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 NDRB 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.
Issue 2: (D ecisional) ( ) . The A pplicant contends his discharge was inequitable. In the absence of a complete d discharge package, the Board presumed regularity of governmental affairs . Specifically, the Board could discern no impropriety or inequity , nor was evidence provided to the Board to indicate impropriety or inequity. Although the Applicant alleged that he was wronged by his Commanding Officer , resulting in his General ( Under Honorable Conditions) discharge , t he record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Office r or anyone else in the discharge process. Relief denied.

Summary: After a thorough review of the available eviden ce, to include the Applicant’s summary of s ervice, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable. By a unanimous vote of 5-0 , t he Board determined the charact erization of ser vice received, General (Under Honora ble Conditions) , and the narrative reason for t he discharge, Misconduct (Civilian conviction ), shall remain as issued considering the length of service and the UCMJ violations in volved. The Applicant remains eligible for a personal appearance hearing for a period of 15 years from the date of his/her discharge. The Applicant is directed to the Addendum, specifically the paragraph titled Reenlistment/RE-code and Post-Service Conduc t .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are vetera ns organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U .S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB . 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 d ischarge 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving n aval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate s (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; attendance 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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