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NAVY | DRB | 2010_Navy | ND1000402

Original file (ND1000402.rtf) Auto-classification: Denied

ex-SR, 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)        20050526 - 20060117     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060118     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070326      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level: +       AFQT: 55 (at enlistment) / 81 (retested while on A/D)
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.00
Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20060928 :       Article (UA)
         Article (Failure to obey order or regulation)
         Article 107 (False official statement)
         Awarded : Susp ended:

- 20070215 :       Article 128 (Assault)
         Awarded : ADMIN SEP RIR RESTR Susp ended:

S CM : SPCM:    C C :

Retention Warning Counseling :

- 20060928 :       For violation of A rticle(s) 86-Unauthorized absence, 92-Failure to obey order or regulation, 107-False official statement .

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 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 .

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

Applicant’s Issues

1 .       Decisional issues : (Equity) Applicant contends that he believed he was accepting a voluntary separation due to over-manning of the service, that it was optional, and that he would be able to re-enlist if he desired. (Propriety) The Applicant contends that his separation for a Pattern of Misconduct does not meet the most accepted and reasonable definitions of the term and will not stand scrutiny under the applicable regulations. (Equity/Propriety) The Applicant contends that he was not counseled on the future impact of a General (Under Honorable Conditions) characterization of his service at discharge .

Decision

Date: 20 1 1 0201    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 NDRB 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 three decisional issues to the NDRB . Furthermore, 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 propriety.

The Applicant enlisted into the naval service for 4 years at age 24 under the Seafarer Seaman Apprenticeship Training Program (SF/SN) with a guaranteed enlistment rate of E-3/Seaman due to college credits . The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention-counseling warning and two non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ) as follows:

•         Article 8 6 (Absence without leave; specifically, Unauthorized Absence)
•         Article 92 (Failure t o obey an order or regulation )
•         Article 1 0 7 ( False Official Statements)
•         Article 128 (Assault) .

Based on the offenses committed by the Applicant, the command administratively processed h im for separation. In the absence of a complete discharge package in the Applicant’s Official Service Record, the NDRB presumed regularity of governmental affairs. As such, the Board presumed that the Applicant was properly notified of the proposed separation processing and was afforded his rights as required by the Naval Military Personnel Manual (MILPERSMAN). The primary document r equired f or separation processing is a signed NAVPERS 1910/32 ( Administrative Separation Processing Notification ) , notifying the A pplicant of the administrative rights afforded to him as part of the separation process. In the absence of a complete separation package, the NDRB was unable to determine if the Applicant chose to exercise h is right to consult with a qualified counsel or to submit a written statement to the separation authority.

The Applicant provided no documentation to rebut any presumption of regularity in governmental affairs by the NDRB , but did provide character reference statements from senior service members whom he worked for and letters of reference from post - service civilian employment along with copies of personal correspondence regarding his separation by himself and his parents with the ship’s CO and the Department of the Navy .

: ( Decisional) ( ) . The Applicant contends that he believed he was accepting a voluntary separation due to over-manning of the service, that it was optional, and that he would be able to re-enlist if he desired. The Applicant contends that his separation for a Pattern of Misconduct does not meet the most accepted and reasonable definitions of the term and will not stand scrutiny under the applicable regulations. The Applicant contends that he was not counseled on the future impact of a General (Under Honorable Conditions) characterization of his service at discharge.

The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure h is discharge met the pertinent standards of equity and propriety. In regards to propriety, the Applicant’s two non-judicial punishments, coupled with the page NAVPERS 1070/613 retention counseling warning, met the requirements for separation for Misconduct based on a demonstrated P attern of M isconduct in accordance with Article 1910-140 of the MILPERSMAN . The NDRB found no issues of impropriety; as such, a change in narrative reason or 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 the positive aspects of the member’s military record. The Applicant ’ s service was marred with two NJPs for misconduct. Violation of Article 92 and Article 128 are serious offenses, punishable by punitive discharge and confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge process.

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of h is service at discharge , reflected a significant departure from the conduct expected of a service member . Given the documented pattern of misconduct, coupled with other formal written counseling regarding the Applicant’s performance and conduct in his official service record, the awarded characterization was equitable and consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that the characterization of service at discharge was appropriate . Accordingly, relief denied.

The Applicant was administratively separated from the Naval service due to Misconduct. As such, processing for separation requires a mandatory notification process in order to proceed. The notification of proposed separation (NAVPERS 1910/32) clearly documents the reason for separation and the reference to the applicable article of the MILPERSMAN as the authority. Additionally, it documents the Applicant ’ s election of rights. Every service member separated is afforded the right to consult with a qualified military or civilian legal counsel before acknowledging the separation proceedings. Moreover, the notification of proposed separation identifies the least favorable characterization of service possible and advise s the respondent that separation proceedings in their case will be suspended for a period of 2 days from the date of the notice in order to afford them a reasonable opportunity to exercise their rights as set forth in the notification. The NDRB determined that the Applicant was: (1) advised that he was being separated involuntarily for a pattern of misconduct, not that he was electing voluntary separation for a reduction in force; (2) the Applicant was afforded an opportunity to consult with qualified legal representation; and (3) the Applicant was afforded an opportunity to determine the affect of the proposed least favorable characterization of service being recommended – General (Under Honorable Conditions). As such, the NDRB determined that the narrative reason for separation and the corresponding characterization of service were proper and equitable ; a change would be inappropriate. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, the d ischarge p rocess, and additional documentation provided by the Applicant, the NDRB found that the discharge was both proper and equitable. 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 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 | ND1000402

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