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NAVY | DRB | 2010_Navy | ND1000381
Original file (ND1000381.rtf) Auto-classification: Denied

ex-OSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20091117
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)        19900430 - 19901003     Active:   19901004-19941002 HON

Period of Service Under Review:
Date of Current Enlistment: 19941003     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990804      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 2.5 ( 5 )      Behavior: 2.0 ( 5 )        OTA: 2.70

Awards and Decorations ( per DD 214):      JMUA (3)

Periods of C ONF : 5 months per Applicant’s testimony

NJP :

- 19950330 :       Article 86 (U nauthorized absence )
         Awarded: Suspended:

- 19951013 :      Article 92 (Dereliction of duties)
         Article 115 (Malingering)
         Awarded : Susp ended:

- 19980409 :       Article 92 (Failure to obey an order or regulation - 2 specification )
         Article 121 (Larceny and wrongful appropriation)
         Awarded : Susp ended: ( RIR vacated 19981006 )

- 19980709 :       Article 86 (U nauthorized absence - 4 specifications )
         Awarded : NFIR Susp ended: NFIR [ Extracted from Commanding Officer’s message dated 19990728]

- 19981020 :       Article 91 (Insubordinate conduct)
         Article 92 (Failure to obey an order or regulation)
         Awarded : RIR imposed/suspended on 19980409 , v acated . Susp ended: NONE

- 19981026 :       Article 121 (Larceny and wrongful appropriation of $120.00, military property of the United States)
         Awarded : Susp ended:


S CM : SPCM: CC:



GCM:

- 19990329 :       Art icle (Stolen property: knowingly receiving, buying, and concealing )
         Sentence : CONF (6 months) per Applicant’s statement; otherwise NFIR

Retention Warning Counseling :

- 19980709 :       [Extracted from Commanding Officer’s message of 19990728]

NDRB Documentary Review Conducted (date):        20051117
NDRB Documentary Review Docket Number:   ND05-00890
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 901004 UNTIL 941002 ”
        
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), Change 22, effective 15 December 1998 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 until
21 August 2002, 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 .

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. The Applicant contends his discharge process was improper.
2 . The Applicant contends his discharge is inequit able , because it was based on isolated incident s .
 3. The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date: 20101213 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 l ed 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) retention counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence - 5 specifications) ; Article 91 (Insubordinate conduct) ; Article 92 (Failure to obey an order or regulation - 3 specification s ) ; Article 92 (Dereliction of duties) ; Article 115 (Malingering) ; and Article 121 (Larceny and wrongful appropriation - 2 specifications ) . Additionally, the Applicant’s record of service included General Court-Martial (GCM) for of the UCMJ: Article (Stolen property: knowingly receiving, buying, and concealing). B ased on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board. The Applicant appeared before the A dministrative S epara tion B oard (ASB) on 9 July 1999 . The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions characterization of service . The command and separating authority approved the ASB’s recommendations and discharged him accordingly.

: (Decisional) ( ) . The Applicant contends his discharge process was improper. The NDRB reviewed the separation process that led to the Applic ant’s discharge. After six NJP s and a GCM (non-punitive sentence), the command determined that the Applicant’s presence was detrimental to maintain proper order and discipline. The Applicant was properly notified that he was being administratively processed and appeared before an administrative board, who determined that he be separated from the Navy with an Under Other Than Honorable Conditions characterization. The Applicant went into an unauthorized absence status and was discharged from the Navy in absentia. The NDRB determined that the discharge process was proper and warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on isolated incidents. D espite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant stated he suffered many setbacks due to personal problems that were emotionally hard to cope with during his enlistment. The NDRB recognizes serving in the U.S. Navy is challenging. However, most members of the Navy serve honorably and therefore , earn their H onorable discharges. In fairness to those members of the Navy, C ommanders and S eparation A uthorities are tasked to ensure Sailors receive no higher characterization than is due based on their conduct and performance during the period of service . A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service . The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate . Accordingly, r elief denied.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. The NDRB is authorized to consider post-service factors in the re - characterization of a discharge. However, there is no law or regulation that provides an unfavorable discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. 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. C ompletion 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 the post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The Applicant provided documentation verifying his accomplishments concerning education, employment, criminal history since discharge , and character references as evidence on his behalf for post-service consideration. The NDRB carefully examined all the documents present ed to the Board, to include the Applicant’s personal testimony during the hearing. The NDRB determined that the Applicant’s efforts, although commendable, w ere not enough to overcome all the misconduct in his service record. The NDRB determined that the awarded characterization of service was appropriate; therefore, it shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s personal testimony, post service factors, summary of service, official medical and record entries, and the discharge process, the Board found Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain .

The Applicant has exhausted all opportunities to petition the NDRB for relief. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149.


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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