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NAVY | DRB | 2009_Navy | ND0900294
Original file (ND0900294.rtf) Auto-classification: Denied

ex-DC2, USN
Current Discharge and Applicant’s Request
Application Received: 20081125
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)      20030624 - 20040411     Active:  

Period of Service Under Review:
Date of Enlistment: 20040412     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080129      Highest Rank/Rate: DC2
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 59
Evaluation M arks:         Performance: 4 ( 2 )        Behavior: 2 ( 2 )          OTA: 3.29

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20060913 :       Art icle 117 ( Provoking speeches or gestures )
         Awarded : Susp ended : for three months

- 20080108 :       Article 92 ( Failure to obey order or regulation – General regulation Article 1164 Equal Opportunity and Treatment )
         Awarded : Oral admonition Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling :

- 20060913 :       For deficiencies in performance and/or conduct are identified: CO, NJP on 12 Sept 2006 for violation of UCMJ, Article 117- Provoking speeches or gestures.

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:              




Related to Post-Service Period (cont) :

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 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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 117 ( Provoking speeches or gestures ) and Article 92 ( Failure to obey order or regulation ) .




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

Applicant’s Issues

 1. Employment opportunities.
2. Change Reenlistment co de.
3 . His NJP should not have happen ed.
4 . Record of service .

Decision

Date : 20 0 9 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

 : 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 s , regarding .

I ssues 3 -4 : ( ) . The Applicant contends someone had unlawfully access ed his computer and found offensive songs on it , which resulted in his NJP and discharge from the naval service. He also states he is not a racist and has “quite a few friends of all nationalities and race. ” 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 violation s of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 117 (Provoking speeches or gestures). These violations are considered serious offenses for which a punitive discharge and confinement is authorized if adjudged and awarded as part of a sentence by a Special or General Courts Martial. The command did not refer the Applicant for a punitive discharge but opted instead fo r an administrative separation subsequent to his second NJP. Since t he Applicant had two NJPs, violated a NAVPERS 1070/613 Administrative Remarks counseling and warning and all offenses occurred in the current enlistment period , he was eligible for separation by reason of misconduct (pattern of misconduct) per MILPERSMAN 1910-140. The Applicant acknowledged receipt of his Administrative Separation Processing Notification Procedure on 08 January 2008 and waived his right to consult with qualified counsel and to submit a written statement. The Applicant had less than six years of service and was not eligible to request an administrative board. If the Applicant felt he was mistakenly charged , it was his obligation to contest those charges at the time they were made.

Aboard ship, there is an expectation of privacy by individuals regarding their personal items, such as a personal computer. From a voluntary statement of one of the witnesses, the Applicant’s computer was left open in the work spaces. After the offensive songs were reported, the Applicant (per his 30 December 2007 statement) gave the command permission to look at his computer. In either situation, the Applicant retained no reasonable expectation of privacy for his computer. For the edification of the Applicant, the rules of evidence do not apply in NJPs. The Applicant admitted on his voluntary statement of 30 December 2007, he downloaded songs onto his computer that were offensive to his shipmates, although from another witness’ statement s the Applicant initially stated his brother had downloaded the songs. In the statement provi ded by the member’s Chief, he states the Applicant lied about removing his iPod from the workbench. When confronted about the iPod, the Applicant pulled it out from his boot and admitted to downloading music onto it. After reviewing the evidence, the NDRB determined the administrative separation was conducted properly and an upgrade in characterization 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; 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, a request from his Congressman and documentation relating to the NJPs, the Applicant failed to provide any additional documentation and evidence on his behalf, particularly anything relating to his attitude on Equal Opportunity. 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, “ General ( Under Honorable Conditions ) ”, was an appropriate characterization considering the length of service and the UCMJ violations involved and , based on the lack of 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, 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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