ex-ETSR, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090409
Characterization of Service Received:
Narrative Reason for Discharge:  (SERIOUS OFFENSE)
Authority for Discharge:  MILPERSMAN

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

                             Summary of Service

Prior Service:
Inactive:   USNR (DEP) 20050126 - 20050608   Active:

Period of Service Under Review:
Date of Enlistment:  20050609     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20071109 Highest Rank/Rate:  ETSN
Length of Service:   Year(s)     Month(s)   01 Day(s)
Education Level:       AFQT:  95
Evaluation Marks:      Performance:  2.0 (3) Behavior:  2.0 (3)     OTA:
2.22

Awards and Decorations (per DD 214):

Periods of CONF:

NJP:
    - 20070504:  Article 86 (Absence without leave), 2 specifications
      Article 92 (Failure to obey an order or regulation), 2 specifications
      Awarded:      Suspended:


    - 20071002:  Article 80 (Attempts), 2 specifications
      Article 91 (Insubordinate conduct toward warrant, noncommissioned,
             petty officer)
      Article 113 (Misbehavior of sentinel)
      Awarded: RIR    Suspended:  NONE

SCM:            SPCM:            CC:            Retention Warning
      Counseling:

                    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:



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

                             Applicant’s Issues
   1. Employment opportunities.
2.  Record of Service (no specific issues)


                                  Decision

Date:  20090618              Location:  Washington D.C.
Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (SERIOUS OFFENSE).

                                 Discussion

:  The NDRB has no authority to upgrade a discharge for the sole purpose of
enhancing employment or educational opportunities.  The Department of
Veterans Affairs 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.  Regulations
limit the NDRB’s review to a determination of the propriety and equity of
the discharge.

Issue 2:  ()  .  The Applicant did not identify any other issues upon which
the Board can consider to recharacterize his discharge.  However, the Board
did complete a thorough review of the circumstances which led to his
discharge and the discharge process to ensure his discharge met the
pertinent standards of equity and propriety.  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 is
marred by two NJPs for violation of the Uniform Code of Military Justice:
Article 80 (attempts, applied flammable substance to his uniform in order
to light it on fire while on watch, 2 specifications), Article 86
(unauthorized absence, missed ship’s muster, 2 specifications), Article 91
(insubordinate conduct toward a petty officer, willfully disobeyed order to
cease his actions of lighting himself on fire), Article 92 (failure to obey
an order or regulation, unprepared for sea bag inspection and did not
checkout of BEQ, 2 specifications,), and Article 113 (misbehavior of
sentinel, sleeping on watch).  Violations of Articles 80, 91, and 113 are
considered serious offenses that 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 to court-martial but opted instead for an administrative
discharge.  The Board determined that an upgrade would be inappropriate.

For the Applicant’s edification, the NDRB is authorized to consider post-
service factors in the recharacterization of a discharge.  However, there
is no law or regulation, which provides for an unfavorable discharge to be
upgraded based solely on the passage of time or good conduct 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 failed to provide
any additional documentation and evidence on his behalf.  The Applicant
could have produced additional evidence as stated in the above paragraph.
By a unanimous vote of 5-0, the Board determined the characterization of
service received, “General (Under Honorable Conditions),” and the narrative
reason for the discharge; “Misconduct (Serious Offense),” shall remain as
issued considering the length of service and the UCMJ violations involved.

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



                          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 80 (Attempts),
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty
officer), and Article 113 (Misbehavior of sentinel).

                  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