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NAVY | DRB | 2010_Navy | ND1000518
Original file (ND1000518.rtf) Auto-classification: Denied

ex-HA, USN
Current Discharge and Applicant’s Request
Application Received: 20091127
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)        19930720 - 19940101     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940102     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950922      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.8 ( 3 )        OTA: 2.86

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 199502 2 4 :       Article (UA), 2 specifications
         Specification 1: Failed to go to appointed place of duty, Gold Team Sick Call at 0800, 19950214
          Specification 2: Absen t from place of duty, Department Muster 0630 to 0700, 19950221
         Awarded : Susp ended:

- 19950720 :       Article 86 (UA) , 5 specifications
         Specification 1: Failed to go to appointed place of duty, Nursing Service Muster 19950712
          Specification 2: Absent from place of duty, Department Muster 0630 to 0705, 19950525
         Specification 3: Absent from place of duty, Department Muster 0630 to 0715, 19950712
         Specification 4: Go from appointed place of duty, Patient Care Watch at 1515, 19950712
          Specification 5: Absent from place of duty, Department Muster 0630 to 0655, 19950719
         Awarded : Susp ended:

S CM :    SPCM:    C C :     

Retention Warning Counseling : - Details of counseling not found in record; service record indicates receipt following NJP for violation of Article 86 of the UCMJ.









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. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until
2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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: The Applicant request that his characterization of service at discharge be upgraded to Honorable and that he receive an improved re-enlistment code .
                                   
2.       Decisional issues : The Applicant did not identify and issues regarding the propriety or equity of his discharge characterization of service or the reason or authority for separation.

Decision

Date: 20 1 1 0224   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. T he 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 in the United States Navy with a five-year obligation for a contractual guarantee to attend Hospital Corpsman School. His entry into the Armed Forces reflects a waiver for pre-service criminal involvement for misdemeanor theft. During his enlistment, the Applicant received one NAVPERS 1076/613 retention-counseling warning. T he Applicant’s record of service further contained two for 7 separate specifications of violating
Article 86 of the U niform Code of Military Justice (UCMJ) – Absence without leave: F ailure to go or absent from his appointed place of duty as directed by competent authorities. Based on the chronic nature of minor offenses committed by the Applicant, his command administratively processed him for separation pursuant to Article 3630600 (1910-138) of the Naval Military Personnel Manual (MILPERSMAN) – misconduct, minor disciplinary infractions. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative discharge hearing board. The Applicant provided no additional documentation for the NDRB’s consideration or any documentation to rebut the NDRB’s presumption of regularity .

: (Nondecisional) . The Applicant request that his characterization of service at discharge be upgraded to Honorable and that he receive an improved re-enlistment code , but provided no reason or justification in support of his request. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) may make changes to reenlistment codes. 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.

The Applicant may petition the BCNR for a change to his RE Code using DD Form - 149. When requesting change, the Applicant should provide as much documentation regarding his contention for a change as possible. The BCNR’s address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information is available online at http://www.donhq.navy.mil/bcnr/bcnr.htm . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or reenlistment opportunities or to provide access to Department of Veterans Affairs benefits . The NDRB is restricted to review ing the propriety and the equity of an Applicant’s discharge - individually, on a case-by-case basis.

: (Board Issue) ( ) . The Applicant did not identify any issues regarding the propriety or equity of his discharge to the NDRB; however, the NDRB conduct ed a detailed review of the circumstances that led to his discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

(Propriety) Based on the chronic nature of minor offenses committed by the Applicant, his command administratively processed him for separation pursuant to Article 19 10-138 (formerly Article 3630600) of the Naval Military Personnel Manual (MILPERSMAN) – M isconduct (M inor D isciplinary I nfractions ) . In accordance with the MILPERSMAN, a member may be separated for a series of at least three , but not more than eight separate minor violations (specifications) of the UCMJ within a current enlistment . The disciplinary infractions may have been disciplined by not more than two punishments under the UCMJ. Additionally, t he Applicant must have violated a formal retention - counse ling warning prior to initiating processing. When notified of administrative separation processing , the Applicant waived his rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative discharge hearing board.

The Applicant provided no additional documentation for the NDRB’s consideration or any documentation to rebut the NDRB’s presumption of regularity . Based on the evidence of record in the Applicant’s official service record, t he Applicant’s record of service met the requirements established for processing for separation pursuant to Article 1910-138 of the MILPERSMAN. Furthermore, the Applicant was advised of his rights via the notification process and was afforded the opportunity to exercise those rights , as required . After a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process, the NDRB found no issues of impropriety ; as such, relief regarding issues of propriety is not warranted.
(Equity) When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s record of service was marred by two nonjudicial punishments for multiple minor violation s of the UCMJ and the violation of a formal retention - counseling warning . The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case. The NDRB determined that the Applicant’s service w as honest and faithful , but that significant negative aspects of the Applicant’ s conduct or performance of duty did outweigh the positive aspects of the Applicant’s service record . T he NDRB determined that the characterization of service at discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances ; a s such, relief based on issues of equity is not warranted.
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 .

Since fifteen years from the date of his discharge has elapsed, the Applicant is no longer e ligible for a personal appearance hearing with the NDRB . The Applicant is directed to petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149 for any further issues related to his separation from the Naval Service .


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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