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NAVY | DRB | 2009_Navy | ND0902222
Original file (ND0902222.rtf) Auto-classification: Denied

ex-GMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090807
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)        2000052 6 - 20000912     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000913     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040524      Highest Rank/Rate: GM3
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.2 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 3.13

Awards and Decorations ( per DD 214):      Rifle Pistol NDSR

Periods of UA /C ONF :

NJP :
- 20030426 :       Article 91 (Insubordinate conduct)
         Article 92 (Failure to obey order or regulation)
         Awarded : Susp ended:

- 20030628 :       Article 92 (Failure to obey order or regulation)
         Article 134 (Inappropriate conduct)
         Awarded : Susp ended:

- 20040316 :       Article 92 (Dereliction in the performance of duties)
         Awarded : Susp ended:

- 20040415 :       Article 92 (Failure to obey order or regulation - 2 specifications )
         Awarded : Susp ended: (vacated on 20040508 - reduced to E-2)

- 20040508 :       Article 121 (Larceny or wrongful appropriation)
         Awarded : Susp ended:

S CM : SPCM:

C C :

Retention Warning Counseling :
- 20020225 :       For military bearing.




Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ MILPERSMAN 1910-140 ”
         “ 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 :   


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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. The Applicant seeks an upgrade to enlis t in the Navy Reserve .
 2 . The Applicant seeks an upgrade to enhance employment /educational opportunities.
 3 . The Applicant contends his discharge is inequitable , because he was accused and sentence d without knowing his rights.
4 . The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date : 20100810 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. 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 91 (Insubordinate conduct by disobeying a Master Chief Petty Officer ), Article 92 (Failure to obey order or regulation - 4 specifications : disobeyed a lawful order by a superior officer by having an unduly familiar relationship with a female Seaman, UA for morning restricted muster, not being in assigned rack after 2200 while on restriction , and derelict in the performance of his duties in that he neg ligently left the S hip’s A rmory, a secured space, unlocked and unattended ) , Article 121 (Larceny or wrongful appropriation of a Sony Play Station Console and two games of a value of about $250.00, the property of another Sailor) , and Article 134 (Inappropriate conduct – was found in passageway hugging and kissing a female Seaman ) . 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 c onsult with a qualified counsel and to submit a written statement for consideration by the separating authority . The Applicant was not entitled to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to enlist in the Navy Reserve and to enhance employment and educational opportunities. 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 B oard for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) 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. Also, 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.

With regards to the Applicant’s claims that he should have been awarded the Purple Heart and medals from his service during Operation Iraqi Freedom and Operation Enduring Freedom, the NDRB does not have the authority to rule on these requests. The NDRB can only look at the propriety and equity of a discharge. The Applicant should address these issues to the Board for Correction of Naval Records for further review. Also, the Applicant should address his issue of adding his California Army National Guard service to his Navy service to the Board for Correction of Naval Records.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because he was accused and sentence d without knowing his rights and because “during each and every mast, a case was created and brought against me … . ” Despite several allegations by the Applicant concerning improper conduct at his NJPs, he provides no documentary evidence to support these claims. The NDRB examined all documentation in the Applicant’s service record for each of his five NJPs and determined that the Applicant was advised of his rights and was allowed the opportunity to provide statements . For his separation processing, the Applicant waived rights to consult with a qualified counsel and to submit a written statement for consideration by the separating authority. The Applicant was not entitled to an administrative board , because he had less than six years of service . The NDRB concluded that his command acted properly in all situations and the discharge for a Pattern of Misconduct was warranted. To be separated for a Pattern of Misconduct, a service member must have at least two NJPs and a Page 13 retention warning in the current enlistment.

It should be noted that the Applicant’s command could have referred some of his charges to a court-martial, which could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) or could have opted for the serious administrative discharge of Under Other Than Honorable Conditions. Instead, his command opted for the milder administrative discharge of General (Under Honorable Conditions). The NDRB determined an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant believes his post-service is worthy of consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. 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 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; attending or completing 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.
For post-service documentation, the Applicant provided his medical/service record from his time in the California Army National Guard and a Student Program Credits Summary from the University of Phoenix. Although the Applicant states he has been attending college, is gainfully employed, and has stayed out of trouble, he failed to provide documentary evidence. T he Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced evidence as stated in the paragraph above with the full understanding that completion of these items alone does not guarantee an upgrade. T he NDRB determined the awarded characterization of service shall remain General (Under Honorable Conditions).
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and post-service documentation, 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, Reenlistment/RE-code , 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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