ex-IC2, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090224
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:   USNR (DEP) 19990910 - 19990928   Active:     USMC       July
1995, extracted from DD1966/3
                             19990929 - 20030927
Period of Service Under Review:
Date of Enlistment:  20030928     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20050427 Highest Rank/Rate:  IC1
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:       AFQT:  72
Evaluation Marks:      Performance:  2.5 (2) Behavior:  2.5 (2)     OTA:
2.65

Awards and Decorations (per DD 214):     (2)

NJP:

    - 20050127:  Article 86 (UA), 3 specifications
      Article 92 (Failure to obey a lawful order or regulation)
      Article 132 (Fraud against the United States)
      Awarded:     Suspended:

SCM:            SPCM:            CC:            Retention Warning
      Counseling:

            Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

        “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19990929 UNTIL 20030927”
        “UNDER OTHER THAN HONORABLE CONDITIONS”

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 Representation:
      From Congress member:
                    Other Documentation:

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

                             Applicant’s Issues

1. Requests consideration for his record of service.
2. Alleges that an error and injustice was made by both the commanding
officer (CO) and administration department (Admin) aboard the USS NASHVILLE
(LPD 13) regarding the Applicant’s basic allowance for housing (BAH).

                                  Decision

Date:  20090618        Location:  Washington D.C.  Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

                                 Discussion

:  ()  .  The NDRB, under its responsibility to examine the propriety and
equity of an Applicant’s discharge, is authorized to change the character
of service and the reason for discharge if such 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
Applicant contends that he was an exemplary sailor.  The Applicant’s record
of service was marred by one non-judicial punishment (NJP) for violations
of Uniform Code of Military Justice (UCMJ) Article 86 (unauthorized absence
(UA), 3 specifications); Article 92 (failure to obey order or regulation);
and Article 132 (fraud against the United States).  Violations of Articles
92 and 132 are considered serious violations that could have resulted in a
punitive discharge and confinement if adjudicated and awarded as part of a
sentence by a special or general court-martial.  The command did not pursue
a punitive discharge but instead opted for an administrative discharge.
The presumption of regularity of governmental affairs was applied by the
Board in this case due to the unavailability of a complete discharge
package and service record.  Based on the charges of his NJP, with no
contradictory evidence from the Applicant, the Board determined the awarded
characterization was appropriate.

:  ()  .  The Applicant claims his admin department did not change the
location used to pay him BAH, despite repeated requests that they do so.
It was this administrative failure, he alleges, that resulted in his
overpayment of $18,000 as determined by the Defense Finance and Accounting
Service.  Again, the Board assumed regularity in the government’s conduct
as there was no evidence in the record, nor has the Applicant produced any
evidence to support his contention regarding the error in his BAH.  The
Applicant bears the burden of overcoming this presumption through the
presentation of substantial and credible evidence to support his issue.
The Applicant’s statements alone do not overcome the assumed government
regularity in this case.  The Board determined the awarded characterization
was appropriate.

For the Applicant’s edification, the NDRB is authorized to consider post-
service factors in the recharacterization of a discharge.  However, there
is no law or regulation that provides an unfavorable discharge may be
upgraded based solely on the passage of time or good conduct 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.  As noted in correspondence to
the Applicant, 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 certificates (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.

Besides the Applicant’s DD Form 293, the Applicant provided no additional
documentation for review.  Should the Applicant believe his post-service
conduct becomes substantial enough to warrant a personal appearance,
veterans organizations such as the American Legion are willing to provide
guidance to assist former service members in their efforts to obtain a
discharge upgrade. The Applicant remains eligible for a personal appearance
hearing for a period of fifteen years from the date of his discharge.  The
Applicant is directed to the Addendum, specifically the paragraphs titled
Reenlistment/RE-code and Post-Service Conduct.

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 1910-142, 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 violations of the UCMJ, that include Article
92 (failure to obey a lawful order or regulation) and 132 (fraud against
the United States).

                  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, provided 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 granted 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.

Employment/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 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