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NAVY | DRB | 2009_Navy | ND0902045
Original file (ND0902045.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20090714
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19930125 - 19930316     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930317     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960703      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: 3.2 ( 1 )      Behavior: 3.4 ( 1 )        OTA: 3.40

Awards and Decorations ( per DD 214):     

Periods o f UA /C ONF :

NJP :

- 19940310 :      Article (Failure to go to appointed place of duty, to wit: DC self study muster), 3 specifications
         Awarded: Suspended:

- 19950204 :      Article (Failure to go to appointed place of duty)
         Specification 1: Alpha Station
         Specification 2: Crews Galley
         Awarded: Suspended: OF 15 DAYS OF ONE HALF PAY AWARDED
- 19960517 :      Article (UA)
         Article (Dereliction in performance of duty), 2 specifications
         Specification 1: Negligently failed to set and sign setting of material condition yoke
         Specification 2: Negligently failed to report to the Disciplinary Review Board
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 19940311 :       For three specifications of failure to go to appointed place of duty, to wit: DC self study muster.


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 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.        Feels the charges were unjust and were not warranted to be handled at the CO’s level but should have been handled at the departmental level.
 2.       Doesn’t believe his instances of misconduct are related and was never counseled by his chain of command and so his discharge does not qualify as a Pattern of Misconduct.
 3 .       Record of service.
 4 .       Post-service conduct.
Decision

Date: 20 10 0715             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 NAVPERS 1070/613 (Page 13) retention warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Failure to go to appointed place of duty, 2 separate NJPs), Article 86 (Unauthorized absence), and Article 92 (Dereliction in performance of duty). 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 an administrative board.

: (Decisional) ( ) . The Applicant contends that his charges were unjust and should have been handled at the departmental level and were not warranted to be handled at the Commanding Officer’s (CO) level. Violations of UCMJ Articles 86 and 92 are commonly referred to the CO for adjudication. Even at the Navy’s largest commands, such as aircraft carriers, violations of this nature are addressed by the CO.

: (Decisional) ( ) . The Applicant contends that his three NJPs occurred over a year apart from each other, were of separate, unrelated circumstances, and he was never counseled on his behavior. Therefore, the Applicant believes his discharge is unjust, because he didn’t fit a pattern of misconduct. According to the 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 , “a pattern of misconduct is defined as discreditable involvement with civil and military authorities. The member must have violated counseling (Article 3610250.5) prior to initiating processing. Such a pattern may include both minor and serious infractions as evidenced by:
(a) Three or more civilian convictions within the current enlistment.
(b) Three or more punishments under the UCMJ within the current enlistment.
(c) Any combination of three civilian convictions and punishment(s) under the UCMJ within the current enlistment.
(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment.
(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ. ”



Item (b) applies to the Applicant, who received punishment at three NJP during his first enlistment and received a Page 13 retention warning counseling on 11 March 1994 for his failure to go to DC self-study muster. The combination of counseling and NJPs fits the definition of pattern of misconduct.

As to the contention that the incidents occurred over time and were unrelated, a review of the Applicant’s service record indicates otherwise. In response to the charge that he failed to go to DC self-study on three occasions in February 1994, he admitted that “he was late due to his laziness….” As to the charge that he failed to go to his Condition 1 Alpha station in January 1995 , the Applicant admitted to “goofing off. ” For the May 1996 charge that he failed to appear at a Disciplinary Review Board, the Offense Report reads that the Applicant did not appear “due to being asleep in CONFLAG Station #4.” These charges, along with a 5-hour unauthorized absence in May 1996, indicate an inability to conform to basic military standards, regulations, and expectations.

: (Decisional) ( ) . The Applicant contends that he had a strong record of service during his three years and four months on active duty. While the Applicant did receive above-average marks on his evaluations, was qualified in many shipboard watchstations, and improved himself through Fleet Training Center schools and college courses, a pattern of misconduct warrant s separation from the Navy to maintain proper order and discipline. The Applicant clearly met this pattern by receiving three NJPs and a Page 13 retention warning. In particular, the Manual for Courts-Martial United States defines Article 92 (Dereliction in performance of duty) as a serious offense that could have resulted in a punitive discharge (i.e., Bad Conduct) at a court-martial. The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.

4: (Decisional) ( ) . The Applicant contends that in the time since his departure from the Navy, he has been a productive member of his community. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Documentation to help support a post - service conduct upgrade includes, but is not limited to , a verifiable continuous employment record; marriage and children’s birth certificate s (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; attend ance or complet ion of higher education (official transcripts); and documentation of a drug - free lifestyle. It should be noted, however, that providing the evidence as stated in the above paragraph alone does not guarantee an upgrade.

The Applicant provided evidence of acceptance to Middle Tennessee State University as a transfer student for the Fall Term 2009 and v erification of employment at Howard Johnson Lodge & Suites since 8 April 2008. Additionally, he stated that he is a member of the Knights of Columbus and has maintained gainful employment since his discharge 14 years ago, though he provided no documentation to substantiate these claims. The Applicant's documentation need s to be more encompassing and as such, does not demonstrate post-service conduct strong enough to warrant an upgrade .

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 .


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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