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NAVY | DRB | 2009_Navy | ND0900377
Original file (ND0900377.rtf) Auto-classification: Denied

ex-SK3, USNR
Current Discharge and Applicant’s Request
Application Received: 20081205
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: NONE            Active:   19960228 - 20000329 HON

Period of Service Under Review:
 Date of Enlistment: 20000330     Age at Enlistment:
Period of E nlistment : Years 20 MONTHS Extension
Date of Discharge: 20051128      Highest Rank/Rate: SK2
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 55
Evaluation M arks:         Performance: 4.0 ( 5 )      Behavior: 3.4 ( 5 )        OTA: 3.73

Awards and Decorations ( per DD 214):      GCM NDSM Pistol FLOA BATTLE “E” CGMUC SSDR FLOC (2) JSAM

Periods of UA /C ONF :

NJP :
- 20050127 :       Art icle 92 ( Failure to obey order or regulation )
         Awarded : Susp ended :

- 20050929 :       Article 92 ( Failure to obey an order or regulation )
         Article 134 (Disorderly conduct)
         Article 134 (Indecent exposure)
          Article 134 (Indecent acts with another)
         Awarded: Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling:

- 20050207 :       For Article 92 (Failure to obey an order or regulation)

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960228 TO 20000329 ”
        
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 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 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 92 ( Failure to obey order or regulation ) and Article 134 ( Indecent exposure and indecent acts with another ) .


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

Applicant’s Issues

 1. Was issued an RE - 4 Code which makes him ineligible for reenlistment and the GI Bill.
2. Chain of command misled him and discouraged him from requesting a court-martial.
3 . Discharge unjust in that it was his first offense in 9.5 years of service.
4 . Legal office did not assist him in obtaining copies of his discharge paperwork.
5 . False report that he contributed alcohol to minors.

Decision

Date: 20 0 9 0320             Location: Washington D.C .        R epresentation :

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

 : The Applicant contends he was looking to join the Army but his RE code makes him ineligible to reenlist or obtain the GI Bill. 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 s and , for additional information regarding .

: ( ) . In seeking an upgrade to honorable the Applicant contends th is was his first offense in 9.5 years of outstanding military service . He further contends t h e chain of comma n d misle d and discouraged him from requesting a court-martial. T he Applicant’s service was marred by on e retention warning and two NJP proceedings for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Fail ure to obey a lawful order not to provide alcohol to anyone under the age of 21 and failure to obey a lawful order not to have pornographic material on the government computer ) , 3 specifications , and Article 134 ( Disorderly conduct , in decent exposure and indecent acts with another ) . The Applicant admitted he and another male Navy buddy t ook pictures of each others genitals while on a ship for the purpose of sending them to their girlfriends via the internet. The Applicant’s contention this was his first offense is refuted by the record of evidence which indicates he had an NJP on 27 January 2005 , approximately eight months prior to the last NJP of 29 September 2005. Additionally, there is no evidence in the record nor provided by the Applicant to support the contention the command misled and discouraged him from requesting a court martial. The record reflects the Applicant was assigned to the USS CROMMELIN (FFG 37) during both NJP proceedings and therefore did not have a right to refuse punishment and demand trial by court martial per the Manual for Courts-Martial (2008 edition), Part V.

The Board determined based on the seriousness of the offenses committed, Applicant’s age , length of servi ce, and absence of extenuating circumstances the awarded discharge was appropriate and an upgrade is not warranted. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

Issue 4: The Applicant also contends the legal officer at his former duty stat ion was not willing to release his records . He is now seeking advice on how to obtain a copy of the service record. Once a service member has been discharge from the military he can request his record from Commander, Navy Personnel Command, Military Correspondences Division, (PERS 312D) 5720 Integrity Drive, Millington, Tennessee 38055-3130.

Issue 5: ( ) . T he Applicant conten ds he got in to trouble based on a false report h e contributed alcohol to minors . This contention is refuted by the evidence of record which indicates on 25 January 2005, t he Applicant signed a Military Suspect’s Acknowledgement and W aiver of R ights F orm and made a statement wherein he admitt ed to providing alcohol to at least three minors on four different occasions. The Applicant’s contention is without

merit and the Board determined the awarded discharge characterization was appropriate and 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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