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NAVY | DRB | 2010_Navy | ND1000172
Original file (ND1000172.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20091020
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)        20011026 - 20020205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040114      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 1.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 1.67

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP : 5

- 20020508 :       Article (Failure to obey order or regulation)
         Awarded : RESTR EPD ( Susp ended: FOP )

- 200 3 010 2 :       Article (Disrespect toward a Superior Commissioned Officer)
         Article ( Insubordinate conduct toward Warrant Officer, Non-commissioned Officer, or Petty Officer )
         Article 92 (Failure to obey an order or regulation - 2 specifications )
         Article 117 (Provoking speeches and gestures)
         Awarded : Susp ended:

- 20030307 :       Article ( Insubordinate conduct toward Warrant Officer, Non-commissioned Officer, or Petty Officer )
         Article (Failure to obey order or regulation)
         Awarded : BW Susp ended:

- 20031125 :       Article ( Insubordinate conduct toward Warrant Officer, Non-commissioned Officer, or Petty Officer)
         Awarded : Susp ended:

-200401XX:       Article ( Insubordinate conduct toward Warrant Officer, Non-commissioned Officer, or Petty Officer)
         Awarded : NFIR [extracted from Commanding Officer AdSep Package comments – Applicant pending NJP with CO, NAS Lemoore while awaiting final action by Separation Authority ]

S CM :    SPCM:    C C :





Retention Warning Counseling : 3

- 20020508 :       For violation of A rticle 92, order s violation s . Advised of failure to take corrective action could result in punitive or administrative action to include separation from military service.

- 20030102 :       For violation of A rticle 89, disrespect toward a superior commissioned officer; Ar ticle 91, insubordinate conduct toward warrant officer; A rticle 92 (2 specifications), failure to obey an order or regulation; and A rticle 117, provoking speeches and gestures. Advised of failure to take corrective action could result in punitive or administrative action to include separation from military service.

- 20031112 :       For attending Executive Officer Inquiry - awarded Extra Military Instruction: Complete an essay, not less than 500 words on Basic Military Principles. Advised of failure to take corrective action could result in punitive or administrative action to include separation from military service.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ MILPERSMAN 1910-140 ”
        
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:           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. 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.        Nondecisional issues : (1) Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to obtain Montgomery G.I. Bill education benefits. (2) Applicant seeks an upgrade to the characterization of service at discharge in order to have better employment opportunities.

2.       Decisional issues: (Equity) Applicant contends that her misconduct was a series of minor issues that were misunderstandings and were out of her control and the discharge characterization was not equitable to her overall service .

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 identif ied one decisional issue to the Board. Furthermore , the Board c omplete d a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant enlisted into the naval service for 4 years at age 21. The Applicant’s record of service included three NAVPERS 1070/613 (Page 13) retention-counseling warning s and five non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ) as follows :
•         Article 8 9 ( Disrespect toward a Superior Commissioned Officer ),
•         Article 91 (Insubordinate conduct toward a Warrant Officer, Petty Officer, or Non- c ommissioned Officer – 4 separate specifications)
•         Article 92 (Failure to obey and order or regulation – 4 separate specifications )
•         Article 117 ( Provoking speech and gestures ) .

Based on the offenses committed by the Applicant, the command administratively processed h er for separation. The NDRB reviewed the Applicant’s administrative separation package; when notified of administrative separation processing using the discharge notification procedure, the Applicant exercised h er right to consult with a qualified counsel, waived her right to submit a written statement to the separation authority, and was not eligible to re quest an administrative board. The Applicant provided no additional documentation to rebut any presumption of regularity in governmental affairs by the NDRB or to substantiate or justify her issues ( i.e. , w hy an upgrade or change is requested and justification for th at request).

: (Nondecisional). (1) Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to obtain Montgomery G.I. Bill education benefits. (2) Applicant seeks an upgrade to the characterization of service at discharge in order to have better employment opportunities. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. Additionally, 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 the equity of a discharge. The Applicant is directed to the Addendum , and Service Benefits r egarding these issues.

Additionally, in accordance with the Montgomery G.I. Bill Act of 1984 (Chapter 30, Title 38, U.S. Code, Sections 3011, 3012, 3018a, 3018b) a service member “must complete 36 months of active duty service before I am entitled to the current rate of monthly benefit s for a period of 36 months. ” Each active duty service member stipulated to his/her awareness of the specific requirements for the Montgomery GI bill as part of their enlistment process and a signed and dated copy of this acknowledgement is kept on file in the service member’s official military record. The Applicant acknowledged her understanding of the GI Bill requirements and benefits upon electing Montgomery G.I. Bill coverage on 13 February 2002.

: (Decisional) ( ) . Applicant contends that her misconduct was a series of minor issues that were misunderstandings and were out of her control and the discharge characterization was not equitable to her overall service. The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure h er discharge met the pertinent standards of equity and propriety. In regards to propriety, t he Applicant’s four non-judicial punishments , and a pending fifth NJP while awaiting final decision authority of her administrative separation, coupled with the P age 13 counseling retention - warning s , met the requirements for separation based on a demonstrated pattern of misconduct. The NDRB found no issues of impropriety; as such, an upgrade would be inappropriate. Relief denied .

Characterization of service is based on recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. 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 outweighs positive aspects of the member’s military record.

The Applicant’s record of performance and conduct reflected a pattern of misconduct, which spanned across three separate commands ( her “A” school command, her ship of assignment, and then while awaiting separation ashore at Naval Air Station, Lemoore ) . At each separate c ommand, the Applicant was subject to non-judicial punishment for disrespectful and insubordinate conduct to her superiors and for orders and regulations violations. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of h er service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was equitable and consistent with the characterization of discharge given others in similar circumstances . The characterization of service at discharge was appropriate; an upgrade would be inappropriate. Accordingly, r elief is denied .

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 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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