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NAVY | DRB | 2009_Navy | ND0901766
Original file (ND0901766.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090609
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service
Prior Service:
 Inactive:         US N R (DEP)        19900823 - 19910721     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19910722     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19941212      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 3.3 ( 4 )      Behavior: 3.2 ( 4 )        OTA: 3.30
Awards and Decorations ( per DD 214):     
Periods of UA /C ONF :

NJP :
- 19930225 :      Article (Failure to obey order or regulation), 2 specifications
         Specification 1: Failing to maintain proper uniform appearance.
         Specification 2: Wrongfully operate a government vehicle while failing to maintain proper uniform appearance.
         Awarded: Suspended:
- 19930331 :      Article 115 (Malingering 19930227 – 19930306 for purpose of avoiding service feign a sore foot)
         Awarded: Suspended:
- 19940909 :      Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds – with intent to defraud, knowingly wrote a bad check)
         Awarded: Suspended:

S CM : SPCM: C C :

Retention Warning Counseling:
- 19941104 :      For refusing to sign Enlisted performance Evaluation Report. Period of report 94FEB01-94OCT26.
- 19940624 :      For fraud against the government, wrongful use of command cellular phone.


Administrative Corrections to the Applicant’s DD 214

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

         “ PATTERN OF MISCONDUCT ”

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

A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until 2 October 1996), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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. Discharge was too harsh for the misconduct of record.
2. Discharge does not accurately reflect his character of service in light of his mitigating in-service medical problems.
3. Post-service conduct warrants consideration.
Decision

Date: 20100609 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 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 included two NAVPERS 1070/613 (Page 13) warnings, and three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 2 specifications: failing to maintain proper uniform appearance and wrongfully operate a government vehicle while failing to maintain proper uniform appearance), Article 115 (Malingering, feign a sore foot to avoid service), and Article 123a (Making, drawing, or uttering check, draft or order without sufficient funds with intent to defraud, knowingly wrote a bad check, $21.75). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to cons ult with a qualified counsel and request an administrative board , but did submit a written statement.
Issue 1 : (Decisional) ( ) . The Applicant contends his discharge was too harsh for the misconduct of record. The NDRB 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, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy .
The Applicant should understand his separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of the punishment awarded at either a court-martial or NJP. Furthermore, violations of Article 92, 115 or 123a could have resulted in punishment substantially more harsh than the discharge the Applicant received. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined the awarded characterization of discharge was warranted.

Issue 2 : (Decisional) ( ) . The Applicant contends his discharge does not accurately reflect his character of service in light of his mitigating in-service medical problems. The Applicant provided medical documentation of having fractured his left ankle while playing basketball. The NDRB determined the documentation and testimony by the Applicant were not sufficient to mitigate the charge of malingering, and also determined the Applicant’s medical problem was not a mitigating factor in his writing of a bad check. The NDRB determined the Applicant met the requirements for separation for misconduct – pattern of misconduct and the awarded characterization of service was warranted.

Issue 3 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade in characterization . The NDRB conside rs post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. The Applicant provided documentary evidence of employment, family, education and training, and financial stability. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. By majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but not change the narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. However, based on equitable grounds, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .
Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 .


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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