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NAVY | DRB | 2009_Navy | ND0901161
Original file (ND0901161.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20090331
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: US N R (DEP)      20010427 - 20010509     Active:  

Period of Service Under Review:
Date of Enlistment: 20010510     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030610      Highest Rank/Rate: AOAA
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 20020728- 20020 820 (24 days)
20020912-20021021 ( 40 days)
CONF: Sentenced to 30 days per SCM (Date of CONF NFIR)

NJP : SPCM: CC:

S CM :
- 20021122 : Art icle 86 (U A), 2 specifications totaling 64 days
Article 87 (Missed movement - 2 specifications:
- Specification 1: 20020731
- Specification 2: 20020918
Sentence :

Retention Warning Counseling :
- 20011113 : No further information found in service record. Date extracted from Commanding O fficer’s letter dated
 20030430.

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. R eenlistment o pportunities .
2. Unjust discharge.
3 . Mitigating circumstances .
4. Post service conduct.

Decision

Date : 20 0 9 0507             Location: Washington D.C .        R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning s , regarding . In reference to the Applicant being given a second chance and joining another service, the Boards decision is based on a case-by-case basis. The Board is not concerned with whom the other services reenlist, for it is our job to uphold the high standards of the United States Naval Service. The Applicant should contact a recruiter of the desired branch of service he wishes to enter and discuss his options, fully disclosing his prior experience in the U.S. Navy.

: ( ) . The Applicant contends his discharge was unjust and should not be a permanent mark against his record . The Applicant also states he really wanted to join the Army but ended up joining the Navy. 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 re cord of service was marred by a retention warning and a Summary Court-Martial for violation of the Uniform Code of Military Justice, Article 86 (U A : 2 specifications totaling 64 days ) and Article 87 (Missing movement : 2 specifications ). These are considered serious offenses which could have resulted in a p unitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial. The command refer red the Applicant for a S CM and then opted to administrative ly discharge him by reason of misconduct, commission of a serious offense .

T he Applicant states there were no document ed efforts his command tried to rehabilitate his behavior , which he claims was correctable. The Board presumes the command was in the process of taking legal action against the Applicant for his 24 day UA , which also would have included an administrati ve retention warning; for the edification of the Applicant, administrative retention warnings are determined to be attempts to notify a service member of deficiencies which if left un corrected may result in more se v er e action being taken, which could include separation from military service , they are best tendered when the service me mber is present to receive them . Before legal proceedings took place, the Applicant again put himself in a UA status for 40 days in order to avoid a period of maneuvers for the second time. A month later after the Applicant returned to the ship , the command took legal action, which included an administrative retention warning and a SCM ; he was then processed for an administrative separation. The fact the Applicant signed a contract with the United Sta tes Navy f or 5 years meant he was required to fulfill all obligations as a result of being part of the U.S. Navy, which include reporting to his appointed place of duty on time, unless officially excused; regardless of the fact he really wanted to be in the Army as he stated . The Applicant ’ s UA placed an undue burden on all of his fellow shipmates , which required them to pull up the slack and perform extra duties, not once but twice during sea maneuvers , due to his unexcused absence.

The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the cond uct expected of a Sailor and the awarded characterization was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant contends that mitigating circumstances (worried about wife’s safety) resulted in his misconduct of record. The Applicant provides no documented information he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs
sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. The Board determined that an upgrade would be inappropriate .

Issue 4: (Equity) RELIEF NOT WARRANTED. T he 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 institutions; attending 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.

Besides the Applicant s statement on the DD Form 293, he provided a letter from his wife and a character reference from a former employer as evidence on his behalf. He also states he rehabilitated himself but provides no further explanation of what he means. To 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 obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate.
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), re-issued October 2002, effective 22 August 2002 until
25 January 2004, 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 (UA) and Article 87 (Missing movement).

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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board 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 Board 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 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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