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NAVY | DRB | 2009_Navy | ND0901609
Original file (ND0901609.rtf) Auto-classification: Denied

ex-HN, USN
Current Discharge and Applicant’s Request
Application Received: 20090519
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)        19931008 - 19940206     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940207     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19981028      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 98
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.8 ( 1 )        OTA: 3.80 4.0 eval
         Performance: 3.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.83 5.0 eval
Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

Probation Before Judgment/ C C :

- 19970903 :       Offense: Destruction of property under $300.00
         Sentence : Unsupervised p robation for 30 days

Retention Warning Counseling :

- 19940208 :       Despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre - service civil involvement and/or drug abuse. MJ 1 time 1986
- 19970709 :       For failure of second Physical Readiness test due to failure to participate in Spring 1997 PRT cycle.

Administrative Corrections to the Applicant’s DD 214

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

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MILPERSMAN 1910-144 ”

The NDRB will recommend to the Commander, 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 :   

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 1 September 1998 until 15 September 1999, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 109 .

 C . 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.        Educational and other veteran’s benefits.
2.       Many facts were disregarded in the discharge process.
3 .       Extenuating circumstances .
4 . Lack of chain of command support –no leadership or guidance – engaged in alcohol abuse and other dangerous behaviors .
 5 .       Not convicted of a crime.
6.       Post-service conduct.
Decision

D ate: 20 10 0304             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 NAVPERS 1070/613 (Page 13) warnings for fraudulent enlistment and failure of the second Physical Readiness Test and one plea of guilty in the Maryland Criminal District Court for destruction of property. Based on the civilian offense committed by the Applicant and his failure to comply with the requirements of the PRT program , his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant elected the right to submit a written statement and waived his right to a General Court-Martial Co nvening Authority (GCMA) review .

: (Nondecisional) The Applicant is seeking an upgrade for the purpose of obtaining educational and other veteran’s 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. Furthermore, t he 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.
Issue 2-4 : (Decisional) ( ) . The Applicant is seeking an upgrade to H onorable and c ontends h is command disregarded many facts during the discharge process and hastily processed him out before his enlistment contract expired. The Applicant also contends that he engaged in self destructive behaviors (abuse of alcohol and other dangerous conduct ) because he was ill-equipped to handle the stress and received no leadership or guidance from his chain of command . In regard to the Applicant’s contention that he was discharged hastily before his EAOS, the Military Personnel Manual 1910-010 gives commanding officers the authority to administratively discharge members of the Navy prior to the expiration of their enlistment if they fail to meet the required standards of performance or discipline. Based on a review of the evidence of record and documentary evidence presented by the Applicant, the NDRB determined that there was sufficient evidence to support separation due to PRT failure and civilian conviction. The re was no evidence in the record or provided by the Applicant to support the contention that he was not provided leadership or guidance from his chain of command or that he requested support from his chain of command and did not receive it. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . The NDRB determined the Applicant’s commanding officer acted properly in discharging him prior to the expiration of his obligated service b ased on the previously discussed evidence of record. The Board determined that an upgrade to Honorable was not warranted taking into consideration the Applicant’s length of service, performance evaluations and the seriousness of the offense committed by the Applicant.

Issue 5 : (Decisional) ( ) . The Applicant contends that the judge advocate general at National Medical Center Bethesda wrongfully concluded that hi s “probation before judgment” ruling was a conviction or tantamount to a conviction . The Appli ca nt provided documentation from the Circuit Court of Maryland indicating t hat he plead guilty to destruction of property under $300 and was placed on 30 days unsupervised probation pursuant to a ruling of Probation Before Judgment . Pursuant to the Military Personnel Manual (MILPERSMAN) 1910- 144 members may be separated based on civilian conviction s, or actions tantamount to findings of guilt where adjudication is withheld, deferred prosecution …or any similar disposition of charges which includes imposition of fines, probation, community service, etc. Based on th e evidence of record and documentation provided by the Ap plicant , the NDRB determined that his contention is without merit and refuted by the evidence of record which indicates there was sufficient evidence to support separation based on a civil conviction as required by MILPERSMAN 1910-144 . The NDRB also took note of the fact that the Cir c uit C ourt of Maryland, unlike the military, do es not consider this a conviction .

Issue 6 : (Decisional) ( ) The Applicant also contends he has five children, attended the University of Virginia for three years , was on the deans list , and invited to join an international honor society . The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. 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 documenta tion 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 ac complishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character. The Applicant did not provide any documentation to support his claims he enrolled in college, or is the father of five children. T he Board determined the Applicant’s statement of post-service conduct without documentation of the same was not sufficient to form a basis of relief.

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 and Automatic Upgrades .



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 Disabled 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.

 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.

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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