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NAVY | DRB | 2009_Navy | ND0900476
Original file (ND0900476.rtf) Auto-classification: Denied

ex-ABHAA, USN
Current Discharge and Applicant’s Request
Application Received: 20081222
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)      20050609 - 200507 10     Active:  

Period of Service Under Review:
 Date of Enlistment: 20050711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070823      Highest Rank/Rate: ABHAA
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 46
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.67

Awards and Decorations ( per DD 214):      ICM

Periods of UA /C ONF : SCM: SPCM: CC:

NJP :
- 20070629 :       Art icle 86 (UA)
         Awarded : Susp ended : Suspension vacated 20070 80 7

- 20070718 :      Article 86 (UA - restricted muster )
         Awarded: Suspended:

- 20070808 :      Article 92 (Failure to obey order)
         Awarded: Suspended:

Retention Warning Counseling: 1

- 20070629: For unauthorized absence.

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 :


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

Applicant’s Issues

 1. Discharge unjust because absence without leave (AWOL) due to food poisoning.
2. Used cell phone while on restriction to check on his terminally ill mother.
3. Discharge extreme punishment for first offense and in-service performance.

Decision

Date: 20090402            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MSCONDUCT.
Discussion

 : ( ) . The Applicant contends his discharge is unjust because he was AWOL due to food poisoning and he used a cell - phone while on restriction to check on his mother who was suffering from a brain tumor. He further contends the punishment was extreme considering his performance and the fact it was his first offense. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and characterization of service, if such a 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 record of evidence reflects on 29 June 2007, 18 July 2007 and 08 August 2007 the Applicant was awarded NJP for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 ( Fail ure to go to appointed place of duty (restricted muster and quarters) ), 2 specifications , and Article 92 ( Failure to obey an order , used a cell phone while on restriction). The Applicant was subsequently discharged due to a pattern of misconduct.

There was a sufficient basis to separate the Applicant due to pattern of misconduct as evidenced by the three NJP’s and one counseling warning during this enlistment. There is no evidence in the record nor provided by the Applicant indicating he was seen by medical or that he submitted a request chit for medical leave due to food poisoning and it was d isapproved . Therefore, the Applicant’s contention he was AWOL due to food poisoning is without merit. Additionally, there is no evidence in the record or provided by the Applicant indicating his mother was ill due to a brain tumor or that he put in a request to the commanding officer to contact her while in a restricted status . Based on his own statement , he violated restriction orders by using a cell phone while in a restricted status. Nonetheless, a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service based on the short duration of the unauthorized absence, overall performance and nature of the offenses charged. The NDRB voted unanimously the character of the discharge shall change to “G eneral ( U nder H onorable C onditions) ” , but by unanimous vote, the narrative reason for discharge shall not change. The NDRB determined in view of the frequency of the Applicant's misconduct and without supporting documentation to validate any of his claims a change in the discharge characterization to “H onorable ” is not warranted.

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

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 .


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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