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NAVY | DRB | 2009_Navy | ND0900623
Original file (ND0900623.rtf) Auto-classification: Denied

ex-MSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090123
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge : M ILPERSMAN 36306000 ( PATTERN OF MISCONDUCT )

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19950117 - 19950129     Active:  

Period of Service Under Review:
 Date of Enlistment: 19950130     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19971029      Highest Rank/Rate: MSSN
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 2.23 ( 4 )       OTA: 2.61

Awards and Decorations ( per DD 214):      Periods of UA /C ONF : 19970708 – 19970710 (2 days )

NJP :
- 19961205 :      Article 86 (UA)
         Awarded: Suspended:

- 19970625 :       Art icle 134 (General articles) , 2 specifications :
                  - Specification 1: Obstructing j ustice
                  - Specification 2: Knowingly r eceiving s tolen property
          Awarded : Susp ended :

- 19971008 :       Article 112a ( Drug use, w rongful use of marijuana )
         Awarded: Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling:
- 19960530 :      For disobeying lawful orders from superior petty officer; being disrespectful in language and deportment toward superior petty officers (i.e. failing to come to the petty officer when called, mumbling under your breath when told to do something, making negative facial expressions toward a petty officer, being argumentative with superiors).

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Block 4a , Grade, Rate or Rank should read, “MSSR ”
         Block 4b , Pay Grade should read, “E1 ”

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 14, effective 3 October 1996 until 11 December 1997),
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 s of the UCMJ : Article s 112a (Drug use) and Article 134 .


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

Applicant’s Issues

 1. Federal employment opportunities .
2. Young, confused, and stressed out.
 3. Discharge inequitable based on one isolated incident.
4. Post-service conduct.

Decision

Date: 20 0 9 0423             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 his youth and being stressed out over several issues to include: an out of wedlock child ; being a newlywed to another service member (not the mother of his child) ; not being able to get collocation orders for at least a year or two ; and having no real guidance or leadership at the time of incident were factors in his misconduct . 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 counseling and three NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA, a bsence without leave ), 2 specifications ; Article 112a ( Drug use, w rongful use of controlled substances – marijuana) and Article 134 (General article, 2 specifications: Obstructing justice and k nowingly receiving stolen property). The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant clearly met t he requirements for separation by rea son of a pattern of misconduct and t he command did not pursue a punitive discharge but opted instead for an administrative discharge based on a pattern of misconduct. The applicant should be aware he also met the requirements for a discharge for drug abuse, which was not exercised as a stand alone reason for separation from the service.

While the Applicant may believe his youth and the stress ors identified above were the cause of his misconduct, the record does not reflect he was not responsible for his actions or not accountable for his misconduct due to either youth or stress. Many service members have family issues which add additional stress to their lives; however, relatively few end up violating the UCMJ because of it. The Applicant also states, he “was constantly seeking out for help with my command, but it seems no one wanted to really help.” At the time of his last two NJPs, the Applicant was stationed on the USS THEODORE ROOSEVELT (CVN 71), an aircraft carrier with 5,680 personnel on board including the air wing. The Applicant had a number of people he could have spoken to besides his immediate chain of command – chaplains, medical doctors, counselors, and JAG officers, to name a few. The NDRB is unclear how no one wanted to help the Appl i cant and there is no documentation in the record to support the Applicant’s claim. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate based on the Applicant’s mitigating factors.

 Issue 3: (Equity) RELIEF NOT WARRANTED. He also contends his discharge was inequitable because it was based on one isolated incident, but he did not identify which incident. The NDRB found this issue to be without merit. The Applicant had 3 NJPs for violations of the UCMJ covering a time period of 11 months: His discharge was not based on an isolated incident.

The Board determined the awarded discharge was appropriate and an upgrade based on an isolated incident would be inappropriate.

Issue 4 : ( ) . The Applicant contends he has changed a lot since leaving the Navy – he states he has been married for 11 years, purchased two homes, and has good credit. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided several post-service documents relating to his employment, a criminal record check from 2003, credit history , a letter of recommendation an d portions of his in-service accomplishments and medical records. While the Board applauds the Applicant’s post-service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization to Honorable. Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance. There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.

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 the discharge was proper and equitable .



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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