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NAVY | DRB | 2009_Navy | ND0901512
Original file (ND0901512.rtf) Auto-classification: Denied

ex-ITSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090506
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)        20030116 - 20031207     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20031208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070427      Highest Rank/Rate: IT3
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 2.50 ( 2 )     Behavior: 2.00 ( 2 )       OTA: 2.43

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :
Time Lost (per DD 214): 20061011 - 20061025

NJP :
- 20070126 :       Art icle 86 (UA , 20060906, 20061011, 20061025 ), 3 specifications
         Awarded : Susp ended :

- 20070309 :       Article 86 ( UA )
         Article 89 (Disrespect towards a superior Commissioned Officer)
         Article 91 (Insubordinate conduct toward a Noncommissioned Officer)
          Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20060511 :       For physical fitness assessment failure.
- 20061208 :      For second physical fitness assessment failure.
- 20070126 :      For deficiencies in performance and/or conduct. On 20070126 awarded NJP for UA, 3 specifications.
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 :   

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. Marital problems , wrongfully accused and unjustly punished for one mistake of UA.
2. In-service performance.
3 . No pattern of misconduct .
Decision

Date: 20 10 0204             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 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 NAVPERS 1070/613 (Page 13) warnings, and non-judicial punishments (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absences (UA) – 4 specifications ), Article 89 ( Disrespect towards a superior commissioned officer) , and Article 91 ( Insubordinate conduct toward a noncommissioned officer ) . Based on the offenses committed by the Applicant, command administratively processed for separation based on a pattern of misconduct. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived right s to consult with qualified counsel and submit a written statement . However , the Commander’s (Navy Region Southeast) letter of 26 April 2007 indicated the Applicant was to be separated for a pattern of misconduct with a characterization of Under Other Than Honorable Conditions, and assigned a separation code of “HKA” indicating the Applicant waived his right to an a dministrative b oard.
: (Decisional) ( ) . The Applicant is seeking and upgrade to Honorable and contends that his discharge should be upgraded because he was wrongfully accused and punished for his first UA due to his failure to attend one of t h e alternative to domestic violence classes ; h e was found guilty at NJP and unjustly punished. The Applicant presented a statement indicating that his career was progressing well until he married, began having marital problems and his wife went to his chief and reported that he was mistreating her. He enrolled into an “Alternative to Violence classes” and signed a contract agreeing to attend all sessions and was notified that four unexcused absences could result in his termination from the program. The evidence of record as previously discussed reflects that on 26 January 2007, the Applicant was found guilty of 3 specifications of UA . Subsequent to being awarded NJP for 3 specifications of UA, the Applicant was awarded a second NJP for an UA, disrespect toward a commissioned officer and insubordinate conduct toward a noncommissioned officer. Based on a review of the evidence of record and agreement signed by the Applicant ; the Board concluded that the CO was not bound by the requirements of the domestic violence program and was authorized to take disciplinary action since there was sufficient evidence that the member had violated the UCMJ . Additionally, the Board has determined there is no evidence in the record nor provided by the Applicant to support his contention that he was wrongfully accused and punished.

: (Decisional) ( ) The Applicant also contends that his hard work and accomplishments were over looked by his commanding officer. The Applicant has submitted his s urface warfare specialist designation letter, documentation of his participation in Operation Iraqi Freedom Jul y 2004 – Nov ember 2004, a citation for professional achievement as a message process center operator on board the USS JOHN F. K ENNEDY (CV 67) and other service record entries . After thoroughly reviewing the Applicant’s in-service records and personal statement, the Board determined that an upgrade was not warranted, especially in light of the frequency and seriousness of the offenses committed, his performance evaluation marks, and length of service.

: (Decisional) ( ) . The Applicant also contends that his discharge was unmerited and not justified based on his one mistake and therefore, there was “no pattern of misconduct. ” The evidence of record as previously discussed reflects the Applicant committed serious offenses ( disrespect toward an officer and insubordinate ) in a ddition to the UA s. The evidence of record also indicates that his d ischarge was not based on one offense (UA) but on these serious offenses as well , and that if found guilty of committing these offenses at a courts-martial , he could have received a punitive discharge. The Board determined there was sufficient evidence to separate him due to a pattern of misconduct based on the evidence of record as previously discussed and the Applicant ’s own admi ssion of wrongdoing in his personal statement .
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 Additional Reviews, Automatic Upgrades, 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 Disable d American 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 their 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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