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NAVY | DRB | 2009_Navy | ND0901162
Original file (ND0901162.rtf) Auto-classification: Denied

ex-YN3, USN
Current Discharge and Applicant’s Request
Application Received: 20090321
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19910922 - 19910714     Active:            19910715 - 19940715

Period of Service Under Review:
Date of Current Enlistment: 19940716     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960412      Highest Rank/Rate: YN3
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 4.00        4.0 evals
         Performance: 3.8 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 4.00        5.0 eval
Awards and Decorations ( per DD 214):      JMU ASM

Periods of UA /C ONF :     NJP :     S CM :    SPCM:

ARREST:
- 19960104 :       For i nterference with a flight crew in the performance of their duties and assault consummated by battery.
         Arraigned on assault charge and is awaiting trial which is scheduled for May 1996.

C C : NFIR         Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19910715 UNTIL 19940715 ”

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


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

Applicant’s Issues

 1.       In-service performance .
2.       Felony was reduced to a misdemeanor.
 3 . Post-service conduct.

Decision

Date: 2009 102 8             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 discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included o ne arrest by civilian authorities for interference with a flight crew’s performance of their duties and assault consummated by a battery. Pursuant to an affidavit of a s pecial a gent of the Federal Bureau of In vestigation (FBI), the Applicant was behaving “erratically ” and appeared to be under the influence of an intoxicant while on a flight to Los Angeles, California ; he frequently yelled obscenities and attempted to open an exit door while the aircraft was in flight and assaulted two of the flight attendants . Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified o f administrative separation p rocessing, the Applicant elected his right to consult with qualified counsel and waived his rights to submit a written statement and request an a dministrative b oard. At the time of discharge, the Applicant had been arraigned and was pending trial.

: (Decisional) ( ) . The Applicant is requesting an upgrade to Honorable and contends that he was a 4.0 Sailor with an outstanding service record. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to c haracterize that service under h onorable conditions. An Under Other Than Honorable conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. B ased on the seriousness of the offense s committed as discussed supra , the Applicant’s continued abuse of alcohol despite receiving treatment , length of service, and lack of extenuating circumstances , t he Board determined an upgrade is not warranted. Furthermore, the Board has also determined the Applicant’s in-service performance was not sufficient to mitigate his misconduct .

Issue 2 : (Decisional) ( ) . The Applicant also contends he was separated after being charged for a felony, which was reduced to a misdemeanor after he was discharged. In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge. However, such information can be and was considered by the NDRB in making a determination as to the equity of the characterization of service. Furthermore, t he c ommission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The record of evidence indicates the Applicant was notified of separation due to alcohol rehabilitation failure and the commission of a serious offense as evidenced by the assaults that he committed on the two flight attendants while in an alleged intoxicated state. The evidence of record also reflects that the Applicant engaged in very reckless behavior while traveling on a commercial airplane, thereby endangering the life of many individuals and conducted himself in a manner that reflected negatively on the Navy and himself. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification . Based on a review of the evidence and circumstances unique to this case the NDRB determined that there was sufficient evidence to support a basis for discharge due to the commission of a serious offense and that an upgrade to Honorable was not warranted.

Issue 3 : (Decisional) ( ) . The Applicant contend s h e is now a good citizen , an asset to his community , has resolved his drinking problem and works full time in substance abuse prevention. The Applicant s ubmitted a reference letter from his employer and documentation of his acceptance to a Bachelor of Sc h ool of Theology prog ram for the Board’s consideration . 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 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.

The Board applauds the Applicant for his post- service success . However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time. 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 . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the characterization of service awarded 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, Automatic Upgrades, and Post-Service Conduct .

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 128 (Assault consummated by a battery) .


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 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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