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NAVY | DRB | 2009_Navy | ND0900617

Original file (ND0900617.rtf) Auto-classification: Denied

ex-ETSN, USN

Current Discharge and Applicant’s Request

Application Received: 20090123

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: HARDSHIP (RE-3H)

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20000621 - 20000628     Active:

Period of Service Under Review:
Date of Enlistment: 20000629     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030827      Highest Rank/Rate: ET3
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 90
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 3.01

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 20030801 :       Art icle 92 ( Failure to obey order or regulation), 2 Specifications
         Article 117 (Provoking speeches or gestures)
         Article 128 (Assault upon a Warrant, Non-commissioned , or Petty Officer)
         Article 134 (Threat, communicating)
         Awarded : Susp ended :

S CM : SPCM: C C : Retention Warning Counseling:

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. Requesting the RE Code changed to RE 3 H (Hardship).
2. Discharge inequitable because it was based on one isolated incident in 38 months of service.
3 . Personal family issues should have been considered as extenuating circumstances.
4. A shipmate attempted to fight so Applicant “snapped and assaulted him.
5. The NJP should have been sufficient punishment.
Decision

Date: 20 0 9 0402 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 is requesting a change in the RE Code to RE -3H for reenlistment purposes. 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 , for additional information regarding .

: ( ) . In seeking a change in the narrative reason, t he Applicant contends his discharge was inequitable because it was based on one isolated incident in 38 months of service that involved no other adverse actions. The Applicant also contends there were extenuating circumstances , such as the death of his mother and grandmother that were not considered by the command . 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. T he NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and/or characterization of service, if such a change is warranted. The evidence of record indicates the Applicant ’s record of service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation); Article 117 (Provoking speeches or gestures); Article 128 (Assault) and Article 134 (Communicating a threat). These are considered serious offenses which could have resulted in a punitive discharge if adjudicated and awarded as part of a special or general court-marti a l. The command did not pursue a punitive discharge buy opted instead for an administrative discharge based on this misconduct as it represented the commission of a serious offense. Commission of a serious offense does not require adjudication by non - judicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.

The Applicant presents personal family issues as mitigating circumstances for his misconduct and indicates i n block # 8 of the DD Form 293 death certificates were attached in support of his claim. However, no death certificates were found with the Applicant’s petition. The Applicant provides no documented information he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. T he NDRB determined the personal losses or family issues allegedly experienced by the Applicant were not sufficient to mitigate the misconduct that resulted in his discharge .

Based on a review of the record and statement s from the Applicant, the NDRB found the case was processed in accordance with established procedure and the discharge was equitable. The awarded discharge characterization and narrative reason were appropriate and any change based on family hardship would be inappropriate.

Issue 4-5: ) . The Applicant further contends his narrative reason should be changed because he assaulted another shipmate who had attempted to fight him . The Applicant also indicates he was punished at NJP for this offense and that should have been sufficient disciplinary action. As previously noted the Applicant was found guilty at NJP for assault and communica ting a threat. T here is no indication the Applicant received any other disciplinary action other than the NJP which served as the basis for his administrative separation due to the commission of a serious. An ad ministrative separation is not considered punitive in nature even though one may be subjected to negative consequences as a result of having a less than an honorable discharge and receiving a narrative reason reflective of misconduct as the basis for separation. H owever, b ased on the aforementioned facts, the Board has determined the Applicant’s contentions are without merit. The awarded discharge and narrative reason were appropriate and any change would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, the Board found

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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); Article 117 (Provoking speeches or gestures); Article 128 (Assault) and Article 134 (Communicating a threat).

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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NAVY | DRB | 2009_Navy | ND0900617

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