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NAVY | DRB | 2010_Navy | ND1000178

Original file (ND1000178.rtf) Auto-classification: Denied

ex-ENFN, USNR

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)        20020329 - 20020415     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020416     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040914      Highest Rank/Rate: EN FN
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.00
Awards and Decorations ( per DD 214):

Period of UA/ C ONF :

NJP :

- 20040805 :       Article ( Failed to go at the time prescribed to appointed place of duty, Mandatory PT )
         Awarded : Susp ended:
- 20040819 :       Article 86 (Without authority, absence herself from her assigned extra duty)
         Awarded : Vacate previous suspended punishment Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling : NONE

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 issue: The Applicant seeks an upgrade in the characterization of her service at discharge from General (Under Honorable Conditions) to Honorable in order to improve eligibility for educational financial aid.

Decision

Date : 20 1 1 0106             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY

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 identified no decisional issue s of in equity or impropriety for the NDRB’s consideration . However , the NDRB completed 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 of propriety.

The Applicant enlisted into the naval service for 4 years at age 20 . The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and two non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ) as follows:

•         Article 86 (Abs ence without leave – Failure to go at the prescribed time to the appointed place of duty )
•         Article 86 ( Absence without leave – Absented herself without authority from assigned extra punishment duties ) .

Based on the two misconduct offenses committed by the Applicant, the command administratively processed h er for separation for a demonstrated Pattern of Misconduct. The NDRB reviewed the Applicant’s administrative separation package. When notified of administrative separation process ing using the discharge notification procedure, the Applicant waived her right to consult with a qualified counsel, waived her right to submit a written statement to the separation authority , and waived her right to elect a General Court-Martial Convening Authority review. The Applicant was not eligible to seek an administrative discharge board hearing. The Applicant provided no additional documentation to rebut any presumption of regularity in governmental affairs by the NDRB.

: (Nondecisional). The Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to obtain financial aid for education purposes. 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 or enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.

: (Decisional) (Propriety/ ) . The Applicant did not identify any specific issues of impropriety or inequity for the NDRB’s consideration. However, the NDR B 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.

(Propriety) In regards to propriety, the Applicant’s two non-judicial punishments - without a NAVPERS 1070/613 (Page 13) retention-counseling warning - failed to met the requirement s for separation as prescribed in paragraph 1910-140 of the Naval Military Personnel Manual (MILPERSMAN) for an administrative separation based on MISCONDUCT - Pattern of Misconduct. Discharge pursuant to a pattern of misconduct requires that, during the current enlistment, the A pplicant have received two or more nonjudicial punishments and have violated a NAVPERS 1070/613 retention counseling warning prior to processing for separation. The Applicant ’s record of service reflects that she was found guilty of violating Article 86 of the UCMJ at two separate nonjudic i al punishments; however, the Applicant never received an official counsel ing warning regarding retention in the service if she failed to take appropriate correcti ve actions. Per the Commanding Officer’s letter of recommendation for Administrative Separation , the Applicant had no NAVPERS 1070/613 warning s at the time of separation .
The NDRB found that the Applicant was separated improperly in accordance with the requirements prescribed in the MILPERSMAN ; as such, relief is warranted in a change in narrative reason for separation (Block 28 of DD Form 214) to Secretarial Authority .

In cases where no other reason for separation set forth in the MILPERSMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. The Commanding Officer determined the Applicant had no potential for further Naval service based on her two nonjudicial punishments for misconduct , which were clearly documented in the service record. Since no other narrative reason for separation accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.

The NDRB recognizes that serving in the military is challenging. Most Sailors, however, serve honorably and therefore earn their honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Characterization of service is based on recognition of a Sailor’s performance and conduct, and 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect s a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. Accordingly, relief based on equity of discharge 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 narrative reason for separation shall change to SECRETARIAL AUTHORITY; however, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) .

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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NAVY | DRB | 2010_Navy | ND1000178

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