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NAVY | DRB | 2009_Navy | ND0901774
Original file (ND0901774.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090610
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)        20051028 - 20060214     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060215     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080827      Highest Rank/Rate: CSSN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 47
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.75

Awards and Decorations ( per DD 214):     

Period of C ONF :

NJP :

- 20071217 :       Article 86 (Absent without leave)
         Article 91 (Insubordinate conduct )
         Awarded : Susp ended:

- 20080410 :       Article (Absent without leave)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20071217 :       For article 86, absence without leave, and article 91, insubordinate conduct.

- 20080410 :       For article 86, absence without leave.


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.       Martial problems resulted in misconduct.
2.       Command failed to provide support.
 3.       In-service performance.
Decision

Date : 2010 0409             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.

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 two nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence - two specifications) and Article 91 (Insubordinate conduct - one specification). The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with qualified counsel and submit a written statement. However, per the Applicant’s DD Form 214 he was separated due to a pattern of misconduct and assigned a separation code of “JKA” indicating he was not entitled to an administrative board. A presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.

 : (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable and contends that he married after enlisting and began having marital problems , depression , a decline in his work performance as a culinary specialist and difficulty report ing to work in a timely manner. The Applicant contends that he requested help and counsel ing to deal with his marital problems , especially a fter finding out that his wife was pregnant by another man but did not receive the assistance requested. Per the comments contained in the Applicant’s performance evaluation signed 30 July 2008 , the Applicant had numerous problems influenced by his personal life and had been sent to counseling for various issues with “ little positive results. ” It was also noted that the command had done everything possible to give this “struggling Sailor a chance to reconcile his life , ” and that it was left up to him to do so. This evidence of record contradicts the Applicant’s contention that his command did not provide him assistance or the help he needed to deal with his personal problems. Based on a review of the evidence of record, statement submitted by the Applicant the Board determined that there was sufficient evidence to basis for separation due to a pattern of misconduct as evidenced by the misconduct as previously discussed. Furthermore, the Board determined that the characterization of discharge was appropriate taking into consideration the Applicant’s length of service, offenses committed, overall record and lack of documented evidence of mitigating circumstances.

Issue 3: (Decisional) ( ) . The Applicant also contends that he deserves an upgrade for the many good things that he did during his time in service. The record of evidence reflects that the Applicant had two performance evaluations during this enlistment with an overall trait average of 2.75, a 3.0 rating in performance and 2.0 rating in behavior. The comments contained in the Applicant’s evaluations indicated the following: 1) he was a good cook a nd still adjusting to Navy life; 2) he had a record of unreliability and numerous problems over the past year due to his personal life, and; 3) he was extremely capable but an average performer who had not displayed the judgment and maturity required to excel in his rating. Based on a review of the evidence of record and service record entries submitted by the Applicant the Board determined that characterization of discharge awarded was appropriate and that his in-service performance was not sufficient to justify an upgrade to Honorable.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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 his 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 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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