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NAVY | DRB | 2010_Navy | ND1000530
Original file (ND1000530.rtf) Auto-classification: Denied

ex-MASA, USN
Current Discharge and Applicant’s Request
Application Received: 20091204
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)        20020409 – 20020821     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020822     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060912      Highest Rank/Rate: MASN
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 2.3 ( 3 )      Behavior: 1.0 ( 3 )        OTA: 2.44 (3)

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :
- 20060106 :       Art icle 92 Violated weapons handling procedure regulation, 20050726
         Article False official statement, 2 specifications
         Specificati on 1: Statement regarding her loaded and unattended weapon, 20051123
         Specification 2: Statement regarding her improper relief from guard post, 20051201
         Awarded : Susp ended: (6 months) (6 months)

- 20060331 :       Date extracted from comments in Evaluation and Counseling Report, 200604-200607
         Article ( NFIR )
         Awarded : NFIR Susp ended:

- 20060512 :      Article Departed guard post without proper relief, 20060311
         Article Failure to attend mandated fitness enhancement program, 20060126
         Article False statement regarding fitness enhancement program attendance, 20060316

         Awarded : Susp ended: (6 months)

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20051223 :       For exceeding height/weight and body fat limits on 20051005 with 42% BF, weight 240 lbs.

- 20060106 :       For deficiencies in your performance and conduct as evidenced by NJP of 6 Jan 2006.



Administrative Corrections to the Applicant’s DD 214

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

          “ MILPERSMAN 1910-140 ”

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 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 .

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 s 92 and 107 .


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

Applicant’s Issues

 1 .       Applicant seeks upgrade to improve employment opportunities.
2.       Applicant seeks upgrade to reenlist in the U.S. Armed Forces.
3 .        Applicant contends her discharge was inequitable based on the type of misconduct.
4.       Applicant contends her post-service achievements are more indicative of her true character.
Decision

Date: 20 1 1 01 14             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led 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 warnings for exceeding height / weight and body fat limits (23 Dec 2005 ) and deficiencies in performance and conduct (6 Jan 2006) . The record also contained for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , departed guard post prior to end of shift on 11 Mar 2006 ) ; Article 92 ( Failure to obey order or regulation, 2 specifications: violated weapons handling procedure on 26 Jul 2005, failed to attend mandated fitness enhancement program on 26 Jan 2006 ) ; and Article 107 ( False official statement, 3 specifications: regarding her loaded and unattended weapon on 23 Nov 2005, regarding her improper relief from guard post on 1 Dec 2005, and regarding fitness enhancement program attendance on 16 Mar 2006 ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure on 25 Aug 2006 , the Applicant waived rights to consult with a qualified counsel , submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant seeks an upgrade to improve employment 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.
: (Nondecisional) The Applicant seeks an upgrade to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends her discharge was inequitable based on the type of misconduct. The Applicant’s record reflects she violated UCMJ Article 92 (26 Jul 2005 and 26 Jan 2006) and Article 107 (23 Nov 2005, 1 Dec 2005 , and 16 Mar 2006), each of which is considered a serious offense that is punishable by up to 5 years confinement and a Bad Conduct or Dishonorable discharge if awarded as a result of trial by court-martial (Special or General). In the Applicant’s case, she was not referred to trial by court-martial. Instead, her command opted to process her for administrative separation from the Navy for a P attern of M isconduct in accordance with the Naval Military Personnel Manual (MILPERSMAN), Section 1910-140. A dditionally, a review of the Applicant’s Evaluation and Counseling Report marks over a four - year period show a pattern of inconsistent performance and conduct as evidenced by her Performance, Behavior, and Overall Trai t Averages (OTA) of 2.3, 1.0, and 2.44 , r espectively , on a 5.0 scale . Per the MILPERSMAN , a Sailor may be awarded a General (Under Honorable Conditions) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Furthermore, u pon separation of obligated service , if a member’s OTA marks are below 2.49 , they can be awarded a General (Under Honorable Conditions) discharge. Based on these marks , the two Page 13 retention warnings, and three NJPs within h er first enlistment, the command was justified in awarding the Applicant a General (Under Honorable Conditions) discharge. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors, especially considering her job specialty rating, and falls short of what is required for an upgrade to H onorable .

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her post-service achievements are more indicative of her true character. The Applicant provided no documentation to support her claim regarding post-service achievements. Documentation could have included: ; letter(s) of recommendation from her employers; letter(s) of personal reference; ; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable). The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain General ( Under Honorable Conditions ) .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and administrative separation 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, Automatic Upgrades, 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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