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NAVY | DRB | 2009_Navy | ND0900526
Original file (ND0900526.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20090107
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) 20020529 - 20020701        Active:  

Period of Service Under Review:
 Date of Enlistment: 20020702     Age at Enlistment:
Period of E nlistment : Years 7 Months Extension
Date of Discharge: 20041202      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 0 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: NOB ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.00

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF : 20040420-20040427

NJP :
- 20040427 :       Art icle 86 (UA ) 20040420 - 20040427 ( 7 days )
         Article 87 ( Missing ship’s movement on 20040421 )
         Article 92 (Failure to obey a lawful order), 2 s pecifications
         Article 128 (Assault)
         Awarded: Suspended:

S CM : SPCM: C C :

Retention Warning Counseling:

         -NFIR:   For failure to disclose his juvenile police record prior to enlistment.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 86 (UA) ; Article 87 (Missing ship’s movement) ; Article 91 (Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer) ; Article 92 (Failure to obey a lawful order) ; Article 95 (Resistance, flight, breach of arrest) ; Article 128 (Assault) and Article 134 (General Article) .




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

Applicant’s Issues

 1. Did not complete alcohol treatment.

Decision

Date: 20 0 9 0326             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL .
Discussion

 Issue 1 : ( ) . The Applicant contends he is entitled to a discharge upgrade because he was not given the opportunity to complete his alcohol treatment “ because of a hurricane and state of emergency for Pensacola Florida at the time I was unable to continue treatment . ” The Applicant provided no documented evidence of his inability to complete his treatment. 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 one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 87 (Missing ship’s movement); Article 92 (Failure to obey a lawful order) , 2 specifications and Article 128 (Assault).

In a court-martial specification dated 18 November 2004, t he Applicant was also charged with four further violations of the UCMJ: Article 91 (Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer) , by saying “Fuck you and the rest of those niggers and crackers,” or words to that effect; Article 95 (Resistance, flight, breach of arrest) ; Article 128 (Assault), by grabbing a Sailor by his throat; and Article 134 ( D runk and disorderly, wr ongfully communicated to Police Officer a threat saying “if you take these handcuffs of f for five minutes, I will beat your ass” or words to that effect, and wrongfully communicate d to an Airman, a threat by saying “ I am going to rape you in the ass” or words to that effect ) , 3 specifications. Violations of these Articles are considered a s serious offense s , punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The command elected to accept the Applicant’s request for an “Under Other Than Honorable” conditions discharge in lieu of a trial by court-martial for the four Article violation mentioned above. The Applicant consulted with counsel and was fully advised of the implications of his request. The Applicant understood if discharged “U nder O ther T han H onorable ” conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces, or the character of discharge received there from may have a bearing. No where in the Applicant’s discharge paperwork does he comment on his inability to complete any alcohol related program due to a hurricane or state of emergency prior to his discharge. The Board determined the awarded discharge characterization was appropriate for the violations committed and an upgrade based on a claim he was unable to complete alcohol treatment 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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