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NAVY | DRB | 2009_Navy | ND0900828
Original file (ND0900828.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20080225
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030805 - 20040707     Active:  

Period of Service Under Review:
Date of Enlistment: 20040708     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051118      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.67

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : 0700, 20050819 - 1717, 20051013

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

Administrative Corrections to the Applicant’s DD 214

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

         “ 050819-05101 3 (55 days) ”

The NDRB will recommend to the C ommander, 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 :




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

Applicant’s Issues

 1. Should not have gotten an RE- 4 reentry c ode.
2. Discharge inequitable because it was based on an isolated incident in one year six months of service .
3. Improperly advised regarding discharge by Judge Advocate General (JAG) .
4. Post- service conduct.

Decision

Date: 20 0 9 0528             Location: Washington D.C .        R epresentation :

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

 : In seeking an upgrade in characterization of service and change in the narrative reason, the Applicant contends he should not have gotten a n RE-4 reentry code . For the Applicant’s edification, the reentry code is assigned by the separation authority based on the reason for the discharge and is used to determine whether or not one may reenlist or enlist in another branch of service. Obviously, the Applicant received a waiver since he stated he is now serving in the National Guard. The Board can provide no further relief as t his is an Issue the Board does not have the authority to grant the relief for which the Applicant petitioned. The refore, the Applicant is directed to review the Addendum , specifically the paragraph concerning , for additional information regarding .

: ( ) . The Applicant contends his discharge was inequitable because it was based on one isolated incident in one year and six months of service with no other adverse actions and his UA was not intentional . 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or reason for discharge if such a change is warranted. The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant s eparation from the Navy to maintain proper order and discipline.

The Applicant’s record of service was marred by an unauthorized period of absence f or 55 days in violation of Article 86 of the Uniform Code of Military Justice (UCMJ) . Additionally, t he Applicant submitted a personal statement admitting to leaving his duty station in Virginia, d riv ing friends to Pennsylvania , not returning to his command until 54 days later due to his car breaking down , and missing ship’s movement . This evidence refutes the Applicant’s contention his UA was not intentional. Additionally, t he DD Form 214 reflects the Applicant requested discharge for the good of the service to escape trial by court-martial. The Applicant also admitted to consulting with counsel regarding his administrative separation. In the absence of the administrative separation package , the Board applied the presumption of regularity. Based on the evidence of record the Board determined an upgrade is not warranted and the character statement s ubmitted by the shipmate whom Applicant drove to Pennsylvania was not sufficient to mitigate the misconduct . Furthermore, the summary of service clearly documents there was sufficient misconduct to support separation in lieu of trial. Since no other Narrative Reason for Separation more clearly describes why the Applicant was discharged, a change would be inappropriate. Therefore, relief is denied.

 : ( ) . The Applicant also contends “I was told by my JAG officer that I had to take the UOTH… that with the UOTH I would be able to join the Army Marines or Air Force. ” While t he Applicant may feel his military counsel d id not properly advise him , the record of service and performance evaluations clearly reflects his disregard for the requirements of military discipline and demonstrated he was unfit for further service. The evidence of record does not demonstrate that the Applicant should not be held accountable for his actions. Therefore, relief is denied.

Issue 4: . The Applicant contends he is currently enrolled in the National G uard, has applied for civilian jobs, is married and raising his son. He submitted character reference statements from his wife, friends and former employer for the Board’s consideration. 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 institutio ns; attendance or completion of higher education (official transcripts); 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 rev iewed 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 Ap plicant’s post- service efforts, the Board determined the evidence of post-servic e conduct was not sufficient enough to warrant an upgrade of his discharge characterization. T o warrant an upgrade the Applicant’s post- service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. Should the Applicant obt ain additional evidence or post- service documentation he may wish to apply for a personal appearance. There a re veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. The Board determined the charact erization of service received, Under Other Than Honorable Conditions , was an appropriate characterization considering the length of the UA , and the limited 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 11, effective 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C . 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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