ex-SMSN, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090313
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) 19990413 - 19990421   Active:

Period of Service Under Review:
Date of Enlistment:  19990422     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20020524 Highest Rank/Rate:  SM3
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:       AFQT:  31
Evaluation Marks:      Performance:  2.0 (3) Behavior:  1.3 (3)     OTA:
2.25

Awards and Decorations (per DD 214):

Periods of UA/CONF:

NJP:
    - 20010320:  Article 91 (Willful disobedience of a petty officer)
      Article 128 (Assault consummated by a battery)
            Awarded:     Suspended:

    - 20011012:  Article 91 (Willful disobedience of superior petty
             officer)
            Awarded:      Suspended:


    - 20020330:  Article 86 (Unauthorized absence - 4 specifications)
      Article 134 (Disorderly conduct, drunkenness)
            Awarded:      Suspended:
SCM:

SPCM:

CC:

Retention Warning Counseling:

    - 20010309:  For CO’s NJP held for violation of the UCMJ, Article 92,
             Failure to obey lawful other order, Article 128, Assault
             consummated by a battery.







                    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:    Mother’s Death Certificate

                          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.

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 86
(Unauthorized absence), Article 91 (Willfully disobey a petty officer),
Article 128 (Assault consummated by a battery) and Article 134 (Disorderly
conduct, drunkenness).





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

                             Applicant’s Issues

1.  Misconduct was due to mitigating circumstances – medical issues in
family.
2.  Applicant didn’t receive proper support from Navy.

                                  Decision

Date:  20090820         Location:  Washington D.C. Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PATTERN OF 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 credible evidence to rebut the presumption, to
include evidence submitted by the Applicant.  The Applicant’s record of
service was marred by a retention warning and three NJP’s for violation of
the Uniformed Code of Military Justice, Article 86 (unauthorized absence),
Article 91 (willfully disobeying a petty officer), Article 128 (assault
consummated by a battery) and Article 134 (disorderly conduct,
drunkenness).  These are considered serious offenses 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 refer the Applicant for a court martial but instead opted for an
administrative discharge based on the offenses committed by the Applicant.


:  ()  . The Applicant contends his disciplinary problems were the result
of personal stress which involved his mother being in a coma and eventually
dying 19 months after his discharge.  The NDRB recognizes that service in
the U.S. Navy is demanding, and our country is fortunate to have men and
women willing to endure the hardships and sacrifices of military life while
serving far from family and friends.  It is significant to note, however,
that the vast majority of sailors serve honorably—despite the many personal
and professional challenges they endure—and earn an honorable discharge.
In fairness to these members of the Navy, commanders and those exercising
separation authority are tasked to ensure that undeserving Sailors receive
no higher characterization than is due.  Based on the circumstances, the
NDRB found that the Applicant's service was equitably characterized.
Relief denied.

Issue 2: ()  .  The Applicant contends he didn’t receive the proper support
from the Navy for his personal issues.  The Applicant provides no
documentation that he informed his chain of command of family problems and
did not receive the assistance, leave, or help requested.  Additionally,
the Applicant makes no mention of, nor provides documented proof that he
attempted to use any one of the numerous family support programs for
military service members.  These programs and services, such as Family
Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, and
Navy medical health personnel all provide services to members of the
military, regardless of grade, in times of need.  The NDRB believes the
Navy acted faithfully with regards to the Applicant’s situation.  The NDRB
found that the Applicant's service was equitably characterized.  Relief
denied.

The NDRB is authorized to consider post-service factors in the
recharacterization of a discharge.  However, 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 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;
attending or completing 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 to
demonstrate previous in-service misconduct was an aberration and not
indicative of the member’s overall character.

Besides the Applicant’s statement attached with his DD Form 293, he
provided a copy of his mother’s death certificate as the only evidence on
his behalf.  To warrant an upgrade,  the Applicant’s post-service
activities need to be more encompassing.  The Applicant could have produced
additional evidence as stated in the above paragraph—with the full
understanding that completion of these items alone does not guarantee an
upgrade.  By a unanimous vote of 5-0, the Board determined the
characterization of service received, “Under Other Than Honorable
Conditions,” and the narrative reason for the discharge, “Pattern of
Misconduct,” shall remain as issued based on his length of service and the
UCMJ violations involved.

After a thorough review of the available evidence, to include the
applicant’s summary of service,  record entries, and discharge process, the
Board found


                  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