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NAVY | DRB | 2009_Navy | ND0901408
Original file (ND0901408.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20090428
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)        19990528 - 20000605     Active:   20000606 – 20020616 HON

Period of Service Under Review:
Date of Enlistment: 20020617     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061016      Highest Rank/Rate: MM2
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 78
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 3.34

Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF :

NJP :
- 20030113 :       Art icle 92 ( Dereliction of duty )
         Awarded : Susp ended :

- 20060828 :       Article 9 2 (D ereliction of duty )
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling :
- 20030113 :       For violation of UCMJ, Article 92, Dereliction of duty on 20021120



Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000606 UNTIL 20020616 ”

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 Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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. The Applicant claims her misconduct was an isolated incident in 53 months of good service.
2. The Applicant claims she was sexually discriminated against by her LPO.
3 . The Applicant claims her discharge was too harsh.
4. The Applicant claims she was unfairly denied a hardship transfer.

Decision

Date : 20 100107    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 included NAV PERS 1070/613 (Page 13) warning and nonjudicial punishments (NJP’s) for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Dereliction of duty: 2 specifications – willfully failing to stand a proper watch (fell asleep) and failing to have a shipmate, who she signed out with ship security and thus was deemed responsible for, back at his appointed place of duty on time ) . Based on the offense(s) committed by the Applicant, command administratively processed for separation. When processed for a dministrative separation , the Applicant waived rights to consult with qualified counsel, submit a written statement for consideration by the separating authority , and to request an administrative b oard.

: (Decisional) ( ) . The Applicant contends her discharge should be upgraded based on her record of service , which was good apart from a single period of misconduct. 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 maintai n good order and discipline. Although the Applicant may feel that her NJP’s were minor, the NDRB determined that the offenses were serious enough to warrant separation. Relief denied.

Issue 2 : (Decisional) ( ) . The Applicant contends she was sexually discriminated by her L eading P etty O fficer (LPO) . Aside from her claim within her application, the Applicant failed to provide documentation to the NDRB that she reported the alleged discrimination to her chain of command through the various mechanisms (request mast, EEO complaint) established for this important issue. Discrimination of any kind is not t olerated in today’s Navy, but the command cannot take proper action if it is not reported. Relief denied.

Issue 3 : (Decisional) ( ) . The Applicant implies that her discharge was inequitable because it was too harsh based on other service membe r’s who were punished less severely for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service. Based upon available records, the Applicant’s discharge was c onsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the naval service was appropriate, and that a general (under honorable conditions) discharge was warranted. As such, relief is denied.

Issue 4 : (Decisional) ( ) . The Applicant claims she was unfairly denied a hardship transfer. Although the Applicant did provide the NDRB with documentation that her mother transferred custody of her older sister to her in order that her sister could attend a public high school (her mother was a n interstate truck driver and was home-schooling her sister ) , she failed to provide any service-related documentation involving her formal request for a humanitarian transfer , and her inclusion of her command in this process. As an active duty sailor, the Applicant was subject to world-wide deployment and, although her voluntarily support of her sister was admirable, she was still subject to the needs of the Navy. Relief denied

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 Additio nal Reviews and Post-Service Conduct .



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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