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NAVY | DRB | 2009_Navy | ND0901669
Original file (ND0901669.rtf) Auto-classification: Denied

ex-DCFR, USN
Current Discharge and Applicant’s Request
Application Received: 20090527
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)        20010807 - 20010917     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010918     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040121      Highest Rank/Rate: DCFN
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.00

Awards and Decorations ( per DD 214):     

Periods of UA :   20020719 – 20020727 (8 days )              C ONF :

NJP :
- 20031222 :      Article (Absence without leave 20031112 – 20031211, 30 days )
         Article (Missing movement 20031113 )
         Awarded: Suspended:

- 20030513 :      Article (Absence without leave – 20030416 from appointed place of duty )
         Article (Failure to obey order or regulation – dereliction in performance of duty )
          Awarded: Suspended:

S CM :   SPCM:   CC:

Retention Warning Counseling:

- 20031123 :      For Failure to meet body composition assessment standards. Failed run. 3 rd failure in 4 years.

NDRB Documentary Review Conducted (date):        20080603
NDRB Documentary Review Docket Number:   ND08-00677
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

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

         Block 4a, Grade, Rate or Rank, should read: “ DCFR ”
         Block 4b, Pay Grade, should read: “E1 ”

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 :   

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 87, and 92 .



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

Applicant’s Issues

1.        Discharge was too harsh.
2.       P ost-service conduct .
Decision

Date: 2010 0503             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 for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, 20030416 appointed place of duty, and 20031112-20031211, 30 days) 2 specifications, Article 87 ( Missing movement , 20031113 ), and Article 92 ( Failure to obey order or regulation – dereliction in performance of duty ) . The Applicant also had an additional unauthorized absence (20020719-20020727, 8 days) that was not adjudicated . Based on the offense s committed by the Applicant, command administratively processed for separation . When notified of administrative separation processing using the procedure, the Applicant waived rights to cons ult with a qualified counsel and submit a written statement .

: (Decisional) ( ) . The Applicant contends his discharge was too harsh , because he was not given additional days for grieving due to his loss of his foster mother . The Applicant provided no documentation or fur ther evidence to show why he needed additional time, that he asked h i s chain of command for an extension of his leave and that it was denied . Based upon available records, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The NDRB determined the awarded character of service was warranted and the narrative reason for discharge was appropriate.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration of an upgrade. The NDRB considers post-service conduct to determine of the misconduct committed during active duty was indicative of the Applicant’s character or an aberration. The Applicant provided some documentation relating to post-service conduct: a letter from a l aw enforcement organization , a letter from his wife and mother in-law , and 4 certified licenses from the State of New York . The Board determined the evidence of post-service conduct was not sufficient enough to form a basis of relief . The Applicant's efforts needed to be more encompassing. The Applicant should have provide d documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; and certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service and if married, a marriage certificate. Based on the Applicant’s record of service, testimony, and insufficient post-service documentation, the NDRB determined an upgrade would be inappropriate.

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 .


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.

 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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