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NAVY | DRB | 2010_Navy | ND1000156
Original file (ND1000156.rtf) Auto-classification: Denied
ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20091015
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)        20010928 - 20011120     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011121     Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 20061013      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3. 3 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 2.92
Awards and Decorations ( per DD 214):     

Periods of UA : 20030808 - 2003081 2 ( 4 days) , 20031004 - 20031008 (4 days)
Periods of Confinement: 20060601 - 20060625 (24 days)

NJP :
- 20030214 :      Article (Provoking words)
         Awarded: Suspended:

S CM :

SPCM: [Extracted from Evaluation Report and Counseling Record dated 20060626]
- 2006060 6 :       Art icle (False official statement)
         Article 121 (Larceny)
         Sentence : NFIR (20060601-20060625, 24 days)

C C :      Retention Warning Counseling :

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 :        

Pertinent Regulation/Law
A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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. Decisional issues (Equity): Applicant contends that his characterization of service was predicated on one singular event in his otherwise honorable service; as such, applicant requests consideration pursuant to equity for upgrade of characterization of his service to Honorable, vice General ( Under Honorable Conditions ) .

Decision

Date: 20 10 1209            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 Applicant provided no documentation for consideration in mitigation, extenuation, or to rebut the Board’s presumption of regularity in governmental affairs. The Applicant identified one decisional issue relating to the equity of his discharge characterization of service for the NDRB’s consideration. The Board completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant enlisted into the naval service with a waiver for a non-minor misdemeanor law violation. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warning s and one non-judicial punishment for violation o f the Uniform Code of Military Justice (UCMJ): Article 134 (General Article – Provoking S peech or G estures) . Additionally, the Applicant was found guilty at trial by special court - martial for violations of the UCMJ : Article 107 (False Official Statement) and Article 121 (Larceny). As a result of the s pecial c ourt -m artial conviction, the Applicant’s command cancelled his 40 - month extension on his current enlistment. The Applicant completed his obligated active duty service and was subsequently released from active duty and transferred to the Naval Reserve. While in the Naval Reserve, the Applicant was released from his naval reserve service obligation with an Honorable service certificate (Form DD-256) for immediate enlistment into the U. S. Army National Guard.

Issue 1: (Decisional) ( ), . The Applicant contends that his characterization of service was predicated on one singular event in his otherwise honorable service; as such, applicant requests consideration pursuant to equity for an upgrade of his characterization of service to Honorable, vice General ( Under Honorable Conditions ) .

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 Applicant submitted no evidence to rebut this presumption. The Applicant’s record of service is marred with a nonjudicial punishments and a conviction by a Special Court Martial for v iolations of the UCMJ. The Applicant’s service record indicates a pattern of misconduct and misconduct to include the commission of a serious offense; either warranted administrative separation for Misconduct pursuant to Article 1910-142 of the Naval Military Personnel Manual ( MILPERSMAN ) . The Applicant’s command did not pursue th ese avenue s for separation; instead, the Applicant was retained and permitted to complete his obligated service contract.

 C haracterization of service is the recognition of the quality of a Sailor’s performance and conduct. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the member ’s service has met the standards of accepted conduct and performance of duty for military personnel. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record .

In accordance with the MILPERSMAN, at completion of a Sailor’s required active service, characterization of service should be Honorable , unless a General (Under Honorable Conditions) is warranted as determined by the Enlisted Performance Evaluation System . The Naval Enlisted Performance Evaluation System specifies that a member is eligible for a characterization of service as Gener al (Under Honorable Conditions) if , during the current enlistment, the member’s overall individual trait average is 2.49 , or below. This average is determined by averaging the individual trait averages of all evaluations during the current enlistment period . Therefore, characterization will be honorable for Sailors with an individual train average of 2.50 or higher .

In reviewing the Applicant’s discharge proceedings, the B oard noted that the Applicant’s individual trait average in service w as 2.92 , over four evaluations . After a thorough review of the records, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action , but did discern an inequity in the characterization of the Applicant’s service. Based on his overall trait average of 2.92 , t he NDRB determined the Applicant’s performance and conduct, which forms the primary basis for determining the character ization of his service, met the standards of accepted conduct and performance of duty for military personnel . As such, the command should have discharged the Applicant with an Honorable characterization of service . By a vote of 5-0, t he Board determined that relief is warranted.

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 that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.


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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