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NAVY | DRB | 2009_Navy | ND0900696
Original file (ND0900696.rtf) Auto-classification: Denied

ex-QMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090202
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)        19971223 - 19980203     Active:  

Period of Service Under Review:
Date of Enlistment: 19980204     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990423      Highest Rank/Rate: QMSA
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.41

Awards and Decorations ( per DD 214):                      Periods of UA /C ONF :

NJP :
- 19990129 :       Art icle 134 ( Clause 3, violation of state l aws and s tatu t es )
         Article 134 (Drunkenness)
          Awarded : Susp ended :

- 19990322 :       Article 134 ( Disorderly conduct 2 counts, underage drinking and public drunkenness 2 counts )
         Article 92 (Failure to obey lawful order)
         Awarded : Susp ended:

S CM :             SPCM:             C C :

Retention Warning Counseling :

- 19980818 :       For violation of UCMJ, Article 134-Clause 3, violation of s tate l aws and s tatu t es; Article 134-Drunkenness.

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 inequitable because not afforded military counsel or apprised of my rights prior to separation.
 2. There is insufficient evidence to establish a pattern of misconduct.
3 . Post service conduct.

Decision

Date: 20 0 9 0507             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

 : ( ) . The Applicant contends his dis charge is inequitable because he was not afforded du e process rights prior to being separated from the Navy. The Applicant contends at the time he was inf ormed of the separation , h e thought the meeting with the co mmanding officer was regarding NJP. In re viewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence presented by the Applicant to rebut the presumption . The evidence of record, the Applicant’s DD Form 214 and signed by the Applicant at or near the time of discharge, denot es he was separated by reason of misconduct due to a pattern of misconduct and assigned a separation code of HKA, indicating he wa i v ed his right to an administrative board. The presumption of regularity was applied in this case in the ab sence of the administrative separation package . The Applicant failed to pr esent any documentary evidence to support his contention. Based on the available evidence of record and the lack of evidence submitted by the Applicant to rebut the presumption of regularity, the board has determined the Applicant was afforded the appropriate du e process during the administrative processing of his case. Therefore, relief is denied.

: ( ) . The Applicant is also seeking an upgrade to honorable based on the contention there was insufficient basis to establish a “pattern of misconduct” in his military record. In the Applicant’s personal statement he writes “I do not recall nor do my records reflect ever receiving the second NJP”. The Applicant’s record was marred by one retention warning and two NJP’s for violations of the Uniform Code of Military Justice (UCMJ) : Article 92 ( Failure to obey a lawful order ) and Article 134 ( V iolation of state laws, d runkenness and d isorderly conduct (underage drinking and public drunkenness), 3 specifications .

T he Applicant’s Evaluation and Counseling Records of 10 February 1999 and 23 April 1999 submitted by the Applicant as encl osures 11 and 12, indicates in block 43, he was awarded NJP on 29 January 1999 and 22 March 1999 for the misconduct discussed supra . This evidence presented by the Applicant refutes his assertion his record does not reflect the second NJP. Accordingly, the board has determined there was sufficient evidence to separate the Applicant based on a pattern of misconduct as evidenced by his 2 NJP’s and one retention warning during his enlistment. The Board also determined based on the seriousness of the offenses committed and lack of mitigating circumstances an upgrade to honorable is not warranted. Therefore, relief is denied.

: ( ) . The Applicant also contends since being released from the military he has been working in Afghanistan supporting the military, studied abroad and is currently a student of the Dari and Pashtu languages. He provides no documentation in support of these claims. 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 the 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; and documentation of 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.

While the Board applauds the Applicant’s post service efforts, t o warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented . The Applicant could have produced documented evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service , UCMJ violations involved, and the lack of post service documentation provided.
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 18, effective 12 December 1997 until
21 August 2002, 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 NDRB 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 NDRB B oard 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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