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NAVY | DRB | 2009_Navy | ND0901052
Original file (ND0901052.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20090317
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020625 - 20030203     Active:  

Period of Service Under Review:
Date of Enlistment: 20030204     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060427      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 07 D a y ( s )
Education Level:        AFQT: 87
Evaluation M arks:         Performance: 3.0 (1)      Behavior: 1.0 (1)        OTA: 2.71

Awards and Decorations ( per DD 214):     

Period of UA : 20060129-20060215 (17 DAYS)

NJP :
- 200 6 0216 :       Art icle 86 (U nauthorized absence )
         Article 87 ( Missing movement)
                  Awarded : Susp ended :

S CM :

SPCM:

C C :

Retention Warning Counseling : NFIR



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 : Criminal background check, M edical bill documentation, N otice of examination results for firefighter


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

Applicant’s Issues

1. The Applicant states the discharge was too harsh based on the misconduct.     
2. The Applicant states his misconduct was due to mitigating circumstances (personal issues) .
3. The Applicant seeks p ost-service conduct consideration .       

Decision

Dat e: 2009 0917    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service include nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (unauthorized absence for 17 days ) and Article 87 (missing movement through design ) . 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 opted instead for an administrative discharge. When processed for a dministrative s eparation , the Applicant elected rights to consult with qualified counsel and submit a written statement for consideration by the separating authority. He was not entitled to an a dministrative b oard.

: (D ecisional) ( ) . The Applicant contends his discharge was to o harsh based on the misconduct committed. Despite a Sailor’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain good order and discipline. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the Applicant’s discharge proper and equitable. In addition, t he Applicant contends that his discharge was unjust since it was never ordered at his mast . For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP per regulation. Relief denied.

Issue 2: (Decisional) ( ) . The Applicant contends his misconduct was due to mitigating circumstances (personal issues involving his fiancée ). The Applicant states that he notified his chain of command, asked for emergency leave, regular leave, and spoke to multiple chaplains. He claims that his command told him they were not obligated to care for his fianc é e , since she is not a dependent. Per the preliminary inquiry report, when the Applicant went into an unauthorized absence status ; the command sent a representative to his residence to retrieve his TDL and inform him that the commanding officer was ordering him to report to the boat. The Applicant understood and acknowledged the order, but refused to comply. The Applicant knew there would be consequences for his actions, but felt he had to choose his “family” over the Navy. Due to the seriousness of the offense, the Board determined that the commands action to separate the Applicant was warranted.

Due to these mitigating issues, the Applicant requested that the reason for his discharge be changed to “hardship. ” The NDRB, under its responsibility to examine the propriety and equity of a discharge, may change the reason for discharge if such a change is warranted ; however, the Applicant’s service record c learly documents the misconduct which resulted in the Applicant’s discharge. Regulations limit the choices for discharge reason . Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

Issue 3 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for an upgrade. The Applicant provided a criminal background check, medical bill documentation and a notice of examination results for firefighter. The Board applauds the Applicant’s efforts to better yourself and integrate within your community ; h owever, 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 a ddendum, specifically under the paragraph titled Post-Service Conduct , with the full understanding that provision of these items alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and 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 Additio nal Reviews, and Post-Service Conduct .




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 violation of the UCMJ, Article 86 (U nauthorized absence ) and Article 87 (Missing movement through design).




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.

Post-Service Conduct : 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.

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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