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NAVY | DRB | 2009_Navy | ND0900416
Original file (ND0900416.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20081210
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: USNR (DEP)     20010727 - 20010917     Active: 

Period of Service Under Review:
 Date of Enlistment: 20010918      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20040820       Highest Rank/Rate: SN
Length of Service: Year(s) Month(s) 14 D ay(s)
Education Level:         AFQT: 47
Evaluation Marks:        Performance: 3.6 ( 3 )     Behavior: 2.0 ( 3 )        OTA: 2.89

Awards and Decorations (per DD 214):     NDSM SSDR AFEM MUC
Periods of UA/CONF:

NJP:
- 20020417:      Article 80 (Attempts)
         Article 92 (Failure to obey order)
         Article 107 (False official statement)
         Article 108 (Destruction of government property)
         Article 121 (Larceny and wrongful appropriation)
         Article 123 (Forgery)
         Awarded: Suspended:

- 20040525:      Article 109 (Destruction of property other than military property)
          Article 134 (Disorderly conduct)
          Awarded: Suspended: Vacated 20040819
SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20020417:      For violation of UCMJ Article 80 (Attempts); Article 92 (Failure to obey order); Article 107 (False official statement); Article 108 (Destruction of government property); Article 123 (Forgery)
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 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 Representation:     From Congress member:

Other Documentation:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 80, Article 92, Article 107, Article 108, Article 109, Article 121 and Article 123.


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

Applicant’s Issues

 1. Medical benefits for service-connected injuries.
2. No proof shown he committed the offense charged.
3. Others involved in the misconduct were not charged or punished.
4. Punishment was too harsh for misconduct.

Decision

Date: 2009 0326             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 concerning , regarding .

 : ( ) . The Applicant contends he is entitled to a discharge upgrade because no proof was ever shown he was guilty of the offenses charged. 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 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts); Article 92 (Disobeying a lawful order); Article 107 (False official statement); Article 108 (Damage to government property); Article 109 (Destruction of property); Article 121 (Larceny and wrongful appropriation); Article 123 (Forgery) and Article 134 (Disorderly conduct). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.

The NDRB noted the record of evidence clearly shows the Applicant waived his right to a trial by court-martial and an administrative separation board. The Applicant submitted no evidence to the NDRB in support his contention. If the Applicant felt he was mistakenly charged with a crime or wrongly accused, it was his obligation to contest those charges or accusations against him at the time they were made. During a court-martial trial or an administrative separation board, he would have had the opportunity to mount a defense against the charges or accusations against him. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because others involved in this misconduct were not punished. The NDRB rejects the Applicant’s contention as without merit. The NDRB reviews discharges on a case-by-case basis and no evidence can be found in the Applicant’s service record to support his statement. The NDRB is not reviewing other service member’s misconduct or administrative or disciplinary actions against them. The NDRB determined the Applicant’s misconduct was sufficient to warrant the awarded discharge characterization and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because the punishment was too harsh for the misconduct committed. As discussed above under Issue 2, the punishment for the offenses the Applicant was found guilty of could have been punished by confinement and punitive discharge. The NDRB therefore rejects the Applicant’s contention; 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, provided 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 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 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.
Employment/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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