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NAVY | DRB | 2009_Navy | ND0901977
Original file (ND0901977.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20090625
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)        20030612 - 20030618     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030619     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051019      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 2.7 ( 4 )      Behavior: 1.7 ( 4 )        OTA: 2.25

Awards and Decorations ( per DD 214):     

Periods of UA : 20040424-2004042 6 (3 days ); 20050523-20050531 (8 days)
Periods of CONF: 20050623- NFIR: The NDRB assumes that the Applicant served at least 24 days of a 30 day sentence.

NJP :
- 20040522 :       Article (Unauthorized absence)
         Awarded : Susp ended:

- 20050414 :       Article 80 (Attempts)
         Awarded : Susp ended:

S CM :
- 20050623 :       Art icle (Unauthorized absence ( 8 days ) )
         Article 87 (Missed movement)
         Article 92 (Failed to obey order or regulation)
         Sentence :

SPCM:

C C :

Retention Warning Counseling :
- 20040522 :       For Commanding Officer’s NJP held this date for violation of Article 86 - Unauthorized absence.







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 11 June 2008, 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 80 (Attempts), Article 87 (Missing movement) and Article 92 (Failure to obey an order or regulation).


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

Applicant’s Issues

 1. The Applicant is seeking an upgrade for employment opportunities.     
2. The Applicant believes his discharge was inequitable because he was wrongfully accused.
3. The Applicant believes his post-service accomplishments are worthy of consideration.  

Decision

Date : 20 10 0617 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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propri ety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning , for o f the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts: wrongfully tried to sexually assault another shipmate – willful participant although he did not actually touch other shipmate ) and Article 86 (Unauthorized absence for 3 days while in a foreign port) ; and for of the UCMJ: Article 86 (Unauthorized absence for 8 days), Article 87 (Missing movement) and Article 92 (Failure to obey an order or regulation). Based on the offenses committed by the Applicant, command administratively processed fo r separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority , and to request an administrative separ a tion board (ASB). The ASB voted unanimously (3-0) that the preponderance of the evidence supported the misconduct, recommended that the Applicant should be separated from the Navy and recommended that he receive a General (Under Honorable Conditions) characterization of service. The command ing officer honored the ASB’s recommendati on and discharged the Applicant properly and promptly .

: (Nondecisional) The Applicant is seeking an upgrade for employment 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.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable because he was wrongfully accused and punished at one of his NJP’s . The NDRB carefully examined the Applicant’s records and determined that the preliminary inquiry states that although he did not attempt to touch the victim, he was a willing participant while another Sailor acted against the victim. Basically, the Applicant was an accessory to the act because he did not try to stop the misconduct of the other Sailor. Apart from this act, the Applicant was the subject of other misconduct and unsatisfactory performance that warranted separation from the service. One of the evaluations stated that he routinely fails to demonstrate proper conduct and maturity. He is c onstantly being counseled for negative military bearing and appearance, lateness, attitude problems and absence from assigned work areas . Based on the Applicant’s misconduct and performance, the commanding officer contemplated awarding him a more unfavorable discharge characterization, but specifically s tated that he would honor the r ecommendation of the ASB. The NDRB determined that the discharge was warranted and that the Applicant was fortunate to receive the chara cterization he was given. Relie f denied .

: (Decisional) ( ) . The Applicant believes his post-service accomplishments are worthy of consideration. Although the Applicant states he has been attending college, is gainfully employed in security, living a positive life and is helping under privileged adolescents (Whitefo o rd Community Program) , he failed to provide any documentary evidence on his behalf for post-service consideration. 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 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 an alcohol/drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); certification of non-involvement with civil authorities , evidence of financial stability (home ownership/home rental history, credit card payments records; credit scores); college transcripts; documentation of community /church service ; a nd 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. W ithout sufficient documentary evidence, the NDRB cannot 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 Addition al Reviews, Employment/Educational Opportunities 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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