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NAVY | DRB | 2009_Navy | ND0900862
Original file (ND0900862.rtf) Auto-classification: Denied

ex-OS3, USN
Current Discharge and Applicant’s Request

Application Received: 20090303
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630060

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

Summary of Service
Prior Service:
 Inactive:        USNR (DEP)       19880315 - 19880801     Active:          19880802 - 19920513
19950127 - 19950205

Period of Service Under Review:
 Date of Enlistment: 19950206      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 19960703       Highest Rank/Rate: OS3
Length of Service: Year(s) Month(s) 28 D ay(s)
Education Level:         AFQT: 74
Evaluation Marks:        Performance: NA  Behavior: NA     OTA: NA

 Awards and Decorations (per DD 214):     (w/one BS) JMUC

Periods of UA/CONF:

NJP:

- 19960522 :      Article 115 (Malingering)
         Awarded: Suspended:

SCM:    SPCM:   CC:

Retention Warning Counseling:

- 19960515 :      For personality disorder.
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. Reenlist into the MN Army National Guard.
2. “Based on an isolated incident in 8 years of otherwise impeccable service.”
3. Provided two character references.
Decision

Date: 2009 0618             Location: Washington D.C.        R epresentation :

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

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 the reason for discharge if such change is warranted. The Applicant’s record of service was marred by one NAVPERS 1070/613 (Page 13) warning and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 115 (Malingering). Violation of Article 115 is considered a serious violation which 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 Applicant was notified of his a dministrative s eparation p rocessing for p ersonality d isorder and m isconduct due to the c ommission of a s erious o ffense. The Applicant waived his right s to consult with qualified coun sel, submit a written statement and request an Administrative Board. If separation processing is warranted for any reason in addition to Personality Disorder, multiple processing is required. In these cases, should the c onvening a uthority determine the member had committed misconduct, the member shall be separated for that reason.

: The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and 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.

: ( ) . The Applicant contends his misconduct while in-service was “based on an isolated incident in 8 years of otherwise impeccable service.” The NDRB advises the Applicant that, despite a service member’s prior record of service , certain serious offenses—even though isolat ed—warrant separation from the Navy to maintain proper order and discipline. The Applicant’s offenses meet this standard. The Board commends the Applicant for completing his first enlistment of four years with an Honorable characterization ; however, each period of enlistment is an independent obligation for a specific period of time and a separate discharge characterization is determined for each enlistment. In the USS THEODORE ROOSEVELT message R071515Z of June 96, the Commanding Officer commented that , “[ The Applicant] has made every attempt possible to get out of the Navy and has even gone as far as malingering.” Based on the Commanding Officer’s comments, the Board determined the Applicant’s misconduct was not an isolated incident.

Issue 3: ( ) . The Applicant provided two character references in support of his post-service conduct. 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, 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 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 appreciates the strong character references provided that indicat e the Applicant is more mature, married with children, and has the potential to be an outstanding soldier, the NDRB determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. To warrant an upgrade the Applicant’s post-service efforts needs 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 obtain additional evidence or post-service documentation he may wish to apply for a personal appearance. O rganizations, such as the American Legion, are willing to provide guidance to 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.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall remain Under Other Than Honorable and the narrative reason for separation shall remain Misconduct.
Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 115 (Malingering).

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

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