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NAVY | DRB | 2009_Navy | ND0900285
Original file (ND0900285.rtf) Auto-classification: Denied

ex-MS2, USN
Current Discharge and Applicant’s Request
Application Received: 20081119
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
 Inactive:         US A R (DEP)        19820223 - 19 82 03 01     Active:            19820302 - 19850301
         USAR (DEP)        19850302 – 19850310               USN      19850417 - 19890413 HON
          USNR (DEP)       19850312 - 19850416

Period of Service Under Review:
 Date of Enlistment: 19890414     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970307      Highest Rank/Rate: MS2
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 21
Evaluation M arks:         Performance: 3.7 ( 6 )      Behavior: 3.7 ( 6 )        OTA: 3.93
Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :       UA: 0700, 19940113 - 0940, 19940227 (45 days); 0700, 19940610 - 2100, 19970205 (971 days , apprehended by civil authorities ) CONF:

NJP :

- 19900420:      Article 92 (Failure to obey order, regulation)
         Article 134 (General Article, specification unknown)
          Awarded: Suspended:

- 1992:  Per Enlisted Performance Evaluation Report dated 92APR01-92AUG07
         Article 86 (Unauthorized Absence)
         Awarded: NFIR Suspended: NFIR

 - 1992:  Per Drug and Alcohol Report of 23 Sep 92
          Article 112a (Wrongful use of controlled substance, codeine)
         Awarded: Found not guilty

S CM : SPCM:

OTHER :
         - 199008:        Domestic Assault, Dismissed
         - 199203:        Domestic Assault, action pending
Retention Warning Counseling: NFIR

NDRB Documentary Review Conducted (date):        20040423
NDRB Documentary Review Docket Number:   ND03-01052
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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 :

Applicant Testified:
Applicant Available for Questions:
Witnesses: Spouse
Observers:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997,
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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. Navy took his b onus, advanced pay, and exchange privileges.
2. Believes active duty obligation was 50 months from April 1989.
3. Post-service conduct warrants consideration.

Decision

Date: 2009 1026   Location: Washington D.C.        R epresentation :

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

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 discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Unauthorized absence, specifics unknown), Article 92 ( Failure to obey order, regulation, specifics unknown), and Article 112a ( Wrongful use of a controlled substance, codeine—found not guilty ) . In addition, the Applicant had two other violations of Article 86 (45 days and 971 days), both times he was apprehended. Based on the offense s committed by the Applicant, his command administratively processed him for separation.

: (Nondecisional) The Applicant contends the Navy took his bonus, advanced pay, and exchange privileges. The NDRB has no authority to upgrade a discharge to resolve pay or service benefit issues. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge

Issue 2 : (Decisional) ( ) . The Applicant contends the end of his active duty obligated service was 50 months from April 1989, which would be June 1993, as verified on the Navy Finance Center (Cleveland, OH) message of R261218Z APR 89 regarding his selective reenlistment bonus (SRB). The number of months indicated in the Navy Finance Center message refers to the length of time required for eligibility of the Applicant’s SRB, not the period of his obligated service. The record of evidence shows the Applicant signed an Immediate Reenlistment contract on 14 April 1989, and in block 29, it states, “I hereby reenlist, obliging and subjecting myself to serve 6 years from 89APR14 unless sooner discharged by proper authority.” Furthermore, in the Applicant’s letter of 12 November 2002, when he requested a document review, he wrote, “All I had was less than nine months left on my third enlistment.” (The Applicant’s last UA (971 days) started on 10 June 1994, which is about 10 months prior to the end of his third enlistment.) Based on the record of evidence, the Applicant’s contention is without merit.

Issue 3 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration. The Applicant provided several work-related documents, including his Social Security Statement of 6 November 2008 . Unfortunately, some of the documents provided were over ten years old, but more significantly, there were no other post-service documents. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .



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 veterans 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 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 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 naval 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 certificates (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 at 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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