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NAVY | DRB | 2009_Navy | ND0902422
Original file (ND0902422.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20090828
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)        20020621 - 20020625     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020626     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040803      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 35/50
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 2.0 ( 2 )        OTA: 2.29

Awards and Decorations ( per DD 214):     

Periods of UA :   20030913-20030915 ( 2 days) ; 20040217- 20040615, 120 days           C ONF :
TL per DD214 :     20030912 – 20030913 (1)

NJP :
- 20030530 :      Article (Failure to obey an order or r egulation - 3 specifications )
         Article (False official statement )
         Article (General article – assault)
         Awarded: Suspended:

- 20030920 :      Article ( U nauthorized absence)
         Awarded: Suspended:

S CM :

SPCM: Charges preferred for of the UCMJ: Article 86 (Unauthorized absence for 120 days, which ended in apprehension by civilian authorities). The Applicant requested to be separated in lieu of trial by court-martial. The command and higher authority approved the request and discharged the Applicant accordingly.

C C :
- 20030129 :       Offense: Misdemeanor : burglary and forgery.
         Sentence : Pled and found guilty, placed on summary probation for 3 years, pay $570, and required to complete 10 days of Public Service Work Program.

Retention Warning Counseling:
- 20030530 :      For violation of articles 92(x3), 107, and 134 resulted in NJP held this date.
- 20030619 :      For failure to meet physical readiness test standards on 20030513.
 - 20030921 :      For violation of article 86 resulted in NJP held on 20030920.
- 20030207 :       For civilian conviction on 20030129.
- 20040217 :      For UA over leave as of 0600.
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 30 May 2005, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C . 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 a change to his RE-code in order to reenlis t into the Army National Guard .
 2 . The A pplicant contends his misconduct was due to personal issues.
3. The Applicant believes his post-service conduct is worthy of consideration.
Decision
Date: 2010 09 16 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 NAVPERS 1070/613 (Page 13) warning s , for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence for 2 days), Article (Failure to obey an order or regulation - 3 specifications), Article (False official statement ) , and Article (General article – assault) , and had charges preferred to a for of the UCMJ: Article 86 (Unauthorized absence for 120 days, which ended in apprehension by civilian authorities). Additionally, the Applicant admitted and was found guilty of a misdemeanor in civilian court for burglary and forgery. On 8 July 2004 , the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request , the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be U nder O ther T han H onorable C onditions. The command approved the request and discharged him accordingly.

: (Nondecisional) The Applicant seeks a change to his RE-code in order to reenlist into the Army National Guard. 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 Board for Correction of Naval Records 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.

 : (Decisional) ( ) . The A pplicant contends his misconduct was due to personal issues. T he Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy- Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel , all provide services to members of the military, regardless of grade, in times of need. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. Although the Applicant states he has matured, is married with a child , and provided character references, he failed to provide any additional documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the addendum with the full understanding completion of these items alone does not guarantee an upgrade. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.

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 discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Reenlistment/RE-code 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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