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NAVY | DRB | 2009_Navy | ND0901006
Original file (ND0901006.rtf) Auto-classification: Denied

ex-MSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090317
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (pattern of misconduct)

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19920131 - 19921012     Active:  

Period of Service Under Review:
Date of Enlistment: 19921013     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19961008      Highest Rank/Rate: MSSN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 3.7 ( 4 )        OTA: 3.76        4.0 evals
         Performance: 2.5 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.35        5.0 evals

Awards and Decorations ( per DD 214):      W/BRONZE STAR W/BRONZE STAR W/BRONZE STAR LoC

NJP :
- 19950919 :       Art icle 91 ( Willful disobedience of a noncommissioned officer) , 2 specifications
         Awarded : Susp ended :

- 19960402 :       Article 86 (UA - go from appointed place of duty)
         Article 91 (Willful disobedience of a lawful order)
         Awarded: Suspended:

- 19960716 :      Article 91 (Willful disobedience of a NCO)
          Article 92 (Dereliction of duty)
         Awarded: Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19950921 :       For willful disobedience of a noncommissioned officer.
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 :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 3 October 1996 until 11 December 1997),
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 .



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

Applicant’s Issues

 1. He w as not adequately represented at his administrative board.
 2. He should have gotten a better discharge.
3. Post-service conduct.
Decision

Date: 20090827            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 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 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’s service record includes three non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence – went from appointed place of duty), Article 91 (Willful disobedience of a noncommissioned officer - 2 specifications) and Article 92 (Dereliction of duty - 2 specifications ), and F ailure to obey a lawful order or regulation). Per the Applicant’s DD Form 214, he was administratively processed due to a pattern of misconduct and assigned a separation code of GKA, indicating that an administrative separation board was held. A presumption of regularity of governmental affairs was applied in the absence of a n administrative separation package.

: (Decisional) ( ) . In seeking an upgrade to Honorable, the Applicant contends his lawyer only spoke with him 5 minutes prior to his administrative board and did not adequately represent him during this proceeding. The Applicant submitted several character statements, which appear to have been written in preparation for his administrative hearing. Furthermore, the Applicant submitted a memorandum from the command legal officer of 13 September 1996, which indicates that the defense counsel presented ample evidence of the Applicant’s professional abilities and informed the administrative separation board of the effect of each type of discharge on the Applicant’s future. After reviewing the evidence of record and statements of the Applicant, the NDRB concluded that there was sufficient evidence to refute the contention that h e was not adequately represent ed at the administrative board . Even though the Applicant may not have spent as m uch time with his counsel as desired or expected , the evidence of record reflects that his defense counsel did prepare for his administrative board as evidenced by the character witness statements and legal officer’s letter as previously discussed.

Issue 2: (Decisional) ( ) . The Applicant also contends he should have gotten a better discharge than he received and that he was discharged days before his EAOS. H owever, h e admits to “messing up” but is opined that he paid for his mistakes by receiving punishment at NJP. The Applicant submitted a letter from his executive officer (XO) of 14 September 1996, indicat ing that an OTH was fair based on the following: 1) he had minor infractions throughout his time in the Navy, and 2) he walked off the hose team during g eneral q uarters and was later found relaxing at his repair locker. Based on a review of the Applicant’s record, character statements, and other matters submitted by the Applicant, the NDRB determined that an upgrade is not warranted based on the seriousness of the offenses committed and the lack of mitigating evidence.

In regard to the Applicant’s contention that he was discharged before his EAOS, the Military Personnel Manual -1910-010 gives commanding officers the authority to administratively discharge members of the Navy prior to the expiration of their enlistment if they fail to meet the require d standards of performance or discipline. The NDRB determined the Applicant’s CO acted properly in discharging him prior to his EAOS due to a pattern of misconduct based on the previously discussed evidence of record .

Issue 3: (Decisional) ( ) . The Applicant also contends he has worked hard since being discharged and has accomplished “so much. ” However, he presented no documenta ry evidence of his post-service accomplishments. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

T he Board determined the Applicant’s statement regarding post-service conduct without documentation to support the same, was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

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 and the narrative reason for separation shall remain .

 The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Automatic Upgrades .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

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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