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NAVY | DRB | 2010_Navy | ND1000579
Original file (ND1000579.rtf) Auto-classification: Denied

ex-QM3, USN
Current Discharge and Applicant’s Request
Application Received: 20091211
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)        20030517 - 20030520     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030521     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051110      Highest Rank/Rate: QM3
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3 .17

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20050923 :      Article (Disrespect toward superior commissioned officer)
         Article (Failure to obey order or regulation)
          Article (Making, drawing, or uttering check, draft, or order without sufficient funds)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20041201 :       For Physical Fitness Assessment failure.

- 20050923 :       For CO’s NJP results.

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.        Nondecisional issues : The Applicant seeks a change in his re-enlistment code and upgrade in his characterization of service at discharge to H onorable in order to improve his opportunities for employment and to access his educational benefits.

2.       Decisional issues : The Applicant contends that his misconduct was a result of his youth and immaturity and that his overall conduct as a Sailor warrants a characterization of his service at discharge as Honorable.

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 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 Applicant identified one decisional issue related to the equity of his discharge for the NDRB’s consideration. Additionally, the NDRB completed a thorough 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.

The Applicant enlisted at age 22, with a waiver for pre-service use of marijuana. He entered active duty service in the Navy on a 4-year enlistment without extension with an enlistment guarantee of Aviation Apprentice Training Program with a guarantee to attend Aviation O rdnance ‘A’ school. The Applicant was further guaranteed the r ank of E-3 upon enlistment due to 2 years of NROTC completed along with 30 or more college credit hours completed.

The Applicant’s record of service includes two NAVPERS 1070/613 retention-counseling warnings and one nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) as follows:

•         Article 89 ( D isrespect to a superior commissioned officer)
•         Article 92 ( F ailure to obey a lawful order or regulation )
•         Article 123(a) ( M aking, drawing, or uttering check, draft, or order without sufficient funds) .

Additionally, t he Applicant’s record of service contains a detailed Naval Criminal Investigati ve Service report of investigation regarding the Applicant’s failures to pay just debts.

On 27 November 2005 , the Applicant was notified by his command that they were recommending he be separated administratively from the N aval S ervice with a General (Under Honorable Conditions ) characterization of service for m isconduct resultant fr o m his evidenced pattern of failure to pay just debts . In accordance with the Nav al Military Personnel Manual (MILPERSMAN), the Applicant was notified of the basis for separation , Article 1910-140 – Misconduct (Pattern of Misconduct). The NDRB reviewed the Applicant’s administrative discharge package to ensure the Applicant was afforded his rights in accordance with the MILPERSMAN. When notified of administrative separation using the notification procedure, the Applicant waived his right to consult with a qualified counsel , waived his right to request a General Court Martial Convening Authority review , and chose not to submit written matters to the Separation Authority. The Applicant did not warrant the right to request a hearing before an administrative board.

: (Nondecisional) – The Applicant seeks a change in his re-enlistment code and upgrade in his characterization of service at discharge to H onorable in order to improve his opportunities for employment and to access his educational benefits.



There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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 solely to a determination of the propriety and the equity of a discharge.

: (Decisional) ( ) . The Applicant contends that his misconduct was a result of his youth and immaturity and that his overall conduct as a Sailor warrants a characterization of his service at discharge as Honorable. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no documentation to the board to rebut the government’s presumption of regularity.

Whenever a Sailor is involved in misc onduct, as described in Article 1910-140 of the MILPERSMAN, commanders are directed to process the S ailor for separation, unless rehabilitation and retention are warranted. The characterization of service for Misconduct normally shall be U nder O ther T han H onorable C onditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances. Moreover, despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The charge specified against the Applicant – violation of Article s 89, 92, and 12 3(a) of the UCMJ – are serious offenses, punishable by punitive discharge and confinement, if adjudicated by a special or general court-martial. The Applicant’s command opted not to pursue the punitive discharge for the violations of the UCMJ, instead choosing the more lenient nonjudicial punishment and administrative discharge process to address the Applicant’s misconduct.

In regards to propriety, the Applicant’s non-judicial punishment, followed by the NAVPERS 1076/6 13 retention - counseling warning and then the Naval Criminal Investigati ve Service report , properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct (set pattern of failure to pay just debts) pursuant to Article 1910-140 of the MILPERSMAN. The Separation A uthority concurred with the recommendation of the Commanding Officer and directed that the Applicant be discharged. The Separation Authority determined that the preponderance of the evidence supported the basis for discharge and that separation from the N aval S ervice was warranted; as such, he directed that the basis for separation on the DD Form 2 14 be Misconduct - Pattern of Misconduct. The Separation Authority further directed that the Applicant be discharged with a General ( Under Honorable Conditions ) characterization of his service and that he receive an RE-4 reenlistment code (not recommended for reenlistment). The NDRB found no issue of impropriety; as such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate.

The Applicant contends that his youth and immaturity was the underlying cause of his misconduct. The NDRB recognizes that many of our s ervice m embers are young at the time they enlist for service, but the majority still manage to serve honorably without issues or misconduct. While some members may be less mature than others, the NDRB did not view the member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Furthermore, there is no evidence in the record, nor did the Applicant provide any documentation, to indicate that he attempted to utilize the numerous services available for s ervice m embers who undergo personal problems during their enlistment such as the Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s youth and immaturity were not mitigating factors in his misconduct and that the awarded discharge was warranted.

Characterization of service is founded on the 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 outweigh the positive aspects of the member’s military record. The NDRB determined that the Applicant’s conduct was honest and faithful but that significant negative aspects of the member’s conduct or performance outweighed the positive aspects of the member’s military record . As such, the awarded characterization of service as, issued, was equitable and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that the characterization of service at discharge was appropriate as issued and that an upgrade would be inappropriate; accordingly, no relief is provided.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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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