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NAVY | DRB | 2010_Navy | ND1000471

Original file (ND1000471.rtf) Auto-classification: Denied

ex-SHSA, USN

Current Discharge and Applicant’s Request

Application Received: 20091120

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)        20041117 - 20050410     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050411     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090130      Highest Rank/Rate: SHSN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level: 14      AFQT: 38
Evaluation M arks:         Performance: 2.7 ( 4 )      Behavior: 1.7 ( 4 )        OTA: 1.87

Awards and Decorations ( per DD 214):      (3) NMCOSR (2)

NJP :

- 20060823 :       Article 92 (Failure to obey a lawful general order) , 2 specifications
         Specification 1: Being on liberty without buddy .
         Specification 2: Staying out on overnight liberty without authorization .
         Article 92 (Failure to obey other lawful order, proceeding on liberty without having a authorized liberty pass . )
         Awarded : Susp ended: FOP

- 20081121 :       Article 86 (UA), 3 specifications
         Specification 1: Absent from USS Kitty Hawk (CV-63) Void Team on 20081107
         Specification 2: Absent from USS Kitty Hawk (CV-63) afternoon safety muster on 20081107
         Specification 3: Failed to go to USS Kitty Hawk (CV-63) on 20081110
         Awarded : Susp ended:

- 20090108 :       Article 86 (Absent without leave ) , 3 specifications
         Specification 1: 20081222
         Specification 2: 20090101
         Specification 3: 20090105
         Awarded : Susp ended:

S CM :

- 20070323 :       Art icle (Failure to obey a lawful order)
         Article 107 (False official statement)
         Sentence : CONF 20 days , ,

SPCM:

C C :

Retention Warning Counseling :

- 20060823 :       For violation of A rticle 92, Violation or failure to obey a lawful general order; A rticle 92, Failure to obey other lawful order.

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 23, effective 20 May 2008 until 9 November 2009, 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 and 107 .

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

Applicant’s Issues

1 . Decisional issues : The Applicant contends that the discharge itself, and the characterization of his service at discharge, was too harsh and that separation after three years and ten months of service was cruel; as such, the Applicant contends that his service warrants consideration for an upgrade to Honorable.

Decision

Date: 20 1 1 021 7 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 one decisional issue for the NDRB’s consideration. 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 entered military service at age 23 on a four - year enlistment with a twelve - month extension ; he completed 3 years and 10 months of his 5 years of obligated service contract . The Applicant’s military service record during his enlistment i ncludes one NAVPERS 1070/613 retention-counseling warning and three nonjudicial punishment s for violation s of the Uniform C ode of Military Justice (UCMJ) : Article 86 (Absent without leave – 6 separate specifications) and Article 92 ( F ailure to obey lawful orders or regulations – 2 specifications) . T he Applicant’s military service record also include d a non-punitive punishment via Summary Court - Martial for violation s of Article s 92 and 107 (F alse o fficial s tatements). In accordance with the UCMJ, violation of A rticle 92 and 107 are serio us offenses , p unishable by punitive discharge ( B ad C onduct or D ishonorable D ischarge ) and up to 5 years of military confinement , if adjudicated and awarded as part of a sentence by a special or general court-martial .

The NDRB reviewed the Applicant’s discharge package. The Applicant was separated administratively from the naval service due to Misconduct (Pattern of Misconduct ) pursuant to Article 1910-14 0 of the Naval Military Personnel Manual (MILPERSMAN). The Applicant was notified of the proposed separation using the administrative board notification procedure. The Commanding Officer advised the Applicant that the least favorable characterization of service he could receive, if discharged, was Under Other Than Honorable Conditions. When notified of the proposed separation action, the A pplicant elected to exercise his right to consult with qualified legal counsel and elect ed to present his case for retention at an administrative discharge hearing board . The Applicant opted to waive his right t o submit written matters for consideration by the Separation Authorit y.

On 27 January 2009 , a Discharge Hearing Board was properly constructed and convened to hear the Applicant’s petitions - as elected by the Applicant. Throughout the hearing, the Applicant argued that although he was guilty of the misconduct and warranted separation, he believed his discharge warranted a General (Under Honorable Conditions) characterization of service. By a vote of 3 to 0, the Administrative Discharge Board determined that a preponderance of the evidence suppo rted a finding of misconduct by an evidenced pattern of misconduct. The Board further recommended, by a vote of 3 to 0, that the Applicant be separated from the naval service for the finding of misconduct. Moreover, b y a vote of 2-1, the Discharge Board recommended that the Applicant’s characterization of service at discharge be General ( Under Honorable Conditions ) .

The Separation A uthority concurred with the findings of the Administrative Discharge Board and, on 30 January 2009 , directed that the Applicant be discharged and that the basis for separation on the DD Form 214 be Pattern of Misconduct. The Separation Authority further directed that the Applicant be discharged with a General (U nder Honorable Conditions ) characterization of his service and that he receive a R E -4 re-enlistment code - not recommended for re-enlistment.

The Applicant provided a copy of a watchbill as documentation of being overworked to demonstrate his issue. It does not rebut any presumption of regularity in governmental affairs by the NDRB .

: (Decisional Issues) ( ) . The Applicant contends that the discharge itself, and the characterization of his service at discharge, was too harsh and that separation after three years and ten months of service was cruel; as such, the Applicant contends that his service warrants consideration for an upgrade to Honorable.

The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety. In regards to propriety, the Applicant’s non-judicial punishment s , coupled with violation of the P age 13 retention counseling-warning, properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 1910-140 of the MILPERSMAN. Additionally, per the Applicant ’ s election of rights, he was afforded qualified legal counsel and a discharge hearing board. The board was properly paneled and convened to hear the Applicant ’ s issues and arguments for retention. The Separation Authority concurred with the board and made no changes to the findings or recommendations. As such, t he NDRB found no issue of impropriety; an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate. No relief provided.

The Applicant contends that his discharge was inequitable and too harsh given his length of service. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In accordance with the MILPERSMAN, a member may be separated , involuntarily , when their conduct or performance of duties warrants separation. D ue to an established pattern of misconduct , t he Applicant was discharged after completing 3 years and 10 months of his 5-year contractual obligation (a 4-year enlistment contract with a 12 - month extension) . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant had violat ed his retention warning and had established a pattern of misconduct , that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions ) discharge was warranted.

The Applicant ’s separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of the punishment awarded at either a court-martial or NJP. Furthermore, the Applicant’s violations of Article 92, as well as violations of Article 107 , could have resulted in punishment substantially more harsh than the discharge the Applicant received. A service member’s c haracterization of service is founded on the recognition of his 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 outweigh the positive aspects of the member’s military record.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct. Additionally, the Applicant’s service record documents that he was counseled – formally – regarding possible separation if he failed to take corrective action s and comply with the expected standards of conduct of a Sailor in the Unites States Navy. Despite the formal written retention warning, the Applicant continued to demonstrate misconduct as evidence by his post - counseling S ummary C ourt -M artial and two non-judicial punishments. After reviewing the Applicant ’ s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect a significant departure from the conduct expected of service members . The NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. A n upgrade would be inappropriate; accordingly, relief as requested 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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NAVY | DRB | 2010_Navy | ND1000471

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