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NAVY | DRB | 2010_Navy | ND1000131
Original file (ND1000131.rtf) Auto-classification: Denied
ex-AMAA, USN
Current Discharge and Applicant’s Request
Application Received: 20091008
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)        20050407 - 20060108     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060109     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080122      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3. 00
Awards and Decorations ( per DD 214):      Pistol

Periods of C ONF :

NJP :
- 20070508 :       Article 86 (Unauthorized absence)
         Awarded : Susp ended:
- 20071129 :       Article 92 ( Failure to obey order or regulation )
         Article (Unauthorized absence)
         Awarded : Susp ended:
- 20080115 :       Article 91 ( Insubordinate conduct toward a warrant officer, noncommissioned officer or petty officer )
         Article 92 (Failure to obey order or regulation)
         Article 134 ( Disorderly conduct, drunken n ess )
         Awarded : NFIR Susp ended: NFIR (per his Evaluation Report dated 20080122)

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060110 :       For fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information: Marijuana 250x 6/98-12/05 (5x in DEP).
- 20071129 :       For violation of A rticle 92, failure to obey order or regulation , and A rticle 86, absence without leave.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 1. Adjust his reentry (RE) code to RE-3C or RE-3D.
2. Reenlistment upon consent with a waiver.
 3. N arrative reason and separation code “does not cogently reflect” in-service conduct .
4. Post-service conduct.
Decision

Date: 20 10 1118             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 two NAVPERS 1070/613 (Page 13) warnings and three nonjudicial punishments for violations o f the Uniform Code of Military Justice : Article 86 ( Absence without leave), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 134 (Disorderly conduct, drunkenness). Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review .

Issues 1-2: (Nondecisional) The Applicant wants his RE code changed to RE-3C or RE-3D and to reenlist. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a RE 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.
Issue 3 : (Decisional) ( ) . The Applicant contends his narrative reason for separation and separation code “does not cogently reflect” his in-service conduct. Per 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 , m embers may be separated when during the current enlistment they have “two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof)” and “a member must have violated a NAVPERS 1070/613 warning prior to processing. ” The misconduct does not need to be related to qualify as a pattern of misconduct. The Applicant’s record of service clearly demonstrated he met the requirements for involuntary separation by reason of misconduct – pattern of misconduct. Furthermore, v iolations of Ar ticles 91 and 92 are considered serious offenses and usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The NDRB determined that the Applicant’s command did consider his in-service conduct and decided not to pursue a punitive discharge , opting instead for the more lenient administrative discharge. The NDRB determined the Applicant’s service had been honest and faithful but significant negative aspects of his conduct outweighed the positive aspects of his military record , and the awarded characterization of service (General), narrative reason for separation , and separation code were appropriate.

Issue 4: (Decisional) ( ) . The Applicant contends he has matured and has maintained a 3.7 grade point average while attending California State University of Los Angeles full-time, working toward a degree in Speech Language Pathology to help rehabilitate v eterans who have suffered trauma during war, works as a teacher’s assistant part-time, is an active member of his church and its youth and young adult ministries, and is a church counselor and mentor.

The NDRB considers 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. Besides the Applicant’s statement, he failed to provide any additional 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. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.

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 GENERAL (UNDER HONORABLE CONDITIONS) 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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