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NAVY | DRB | 2009_Navy | ND0901833
Original file (ND0901833.rtf) Auto-classification: Denied

ex-SH3, USN
Current Discharge and Applicant’s Request
Application Received: 20090615
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)        20011120 - 20020220     Active:  
Period of Service Under Review:
Date of Current Enlistment: 20020221     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060407      Highest Rank/Rate: SH3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 45
Evaluation M arks:         Performance: 3.6 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.46

Awards and Decorations ( per DD 214):      (2) (2)

Periods of C ONF :

NJP :

- 20040819 :       Article (Insubordinate conduct toward a Chief Petty Officer)
         Article 92 (Failed to obey an order or regulation)
         Article 134 (Disorderly conduct, drunkenness)
         Awarded : Susp ended:

- 20051026 :       Article 9 2 (Failed to obey order or regulation, by le aving his liberty buddy)
         Article 86 (Absent from appointed place of duty 0400-0800, 20051020)
         Awarded : Susp ended:

S CM :   SPCM:   CC:

Retention Warning Counseling :
- 20040819 :       For misconduct resulting in NJP.

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 :   


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

Applicant’s Issues

 1.        Continue to suffer the adverse consequences of a bad discharge.
2. Record of service.
 3. There are Sailors in the Navy today that have committed worse offenses.
4 .       Youth and maturity level impaired his ability to serve.
 5. His two incidents occurred while on liberty and did not carry over into his shipboard duties.
 6 . Post-service “Have been a good citizen since my discharge . ”

Decision

Date : 20 10 0422             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 ( Absent from appointed place of duty 0400-0800, 20051020 ), Article 91 ( Insubordinate conduct toward a Chief Petty Officer ), Article 92 ( Failed to obey an order or regulation ) 2 specifications , and Article 134 ( Disorderly conduct, drunkenness ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Co nvening Authority (GCMA) review .

Issue s 1-3 : (Decisional) ( Equity ) . The Ap plicant contends he should not have to continue suffering the adverse consequences of a bad discharge, that he was a good Sailor, and knew of a S ailor who was worse than him and was awarded an Honorable discharge. 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. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s service was marred by one retention warning and two NJP proceedings for violations of Articles 86, 9 1, 92 and 134 of the UCMJ. The NDRB determined the Applicant met the requirements for separation by reason of misconduct – pattern of misconduct, and the awarded characterization of service was warranted.

Issue 4: (Decisional) ( ) . The Applicant contends his y outh and maturity level impaired his ability to serve. While he may feel his youth was the underlying cause of his misconduct, the NDRB determined that the Applicant’s youth or age was not a mitigating factor in his misconduct . The NDRB recognizes that many of our service - members are young at the time they enlist for service but still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of youth or immaturity to be a mitigating factor or a sufficient reason for misconduct.

Issue 5: (Decisional) ( ) . The Applicant contends his in-service work performance was unaffected by his off- duty misconduct . A service member is subject to recall 24 hours a day & days a week. W het her a Sailor is on duty or not, he is expected to adhere to responsible behavior. Being off-duty does not justify inappropriate conduct or poor judgment . While the Applicant may feel his in-service work performance was not affected by his off- duty misconduct , his evaluation marks rated him as an average Sailor. Additionally, the Applicant's commanding officer did not request a waiver to retain him in the service. The NDRB determined the Applicant's off- duty misconduct did impact his in-service work performance, and based on his record of service, determined the awarded characterization of service was warranted.

Issue 6 : (Decisional) ( ) . The Applicant contends he has been actively involved with the church, local programs, and does not drink any longer. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. Besides the Applicant’s statement with his DD Form 293, he failed to provide any documentation and evidence on his behalf to support a post-service conduct review. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in 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 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 . The Applicant's efforts need to be more encompassing. The Applicant should provide documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); 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. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

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 .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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 .


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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