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NAVY | DRB | 2010_Navy | ND1000580

Original file (ND1000580.rtf) Auto-classification: Denied

ex-OSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20091209

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)        20060224 - 20060612     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060613     Age at Enlistment:
Period of E nlistment : 4 Years Extension
Date of Discharge: 20090305      Highest Rank/Rate: OS3
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 4.0 ( 5 )      Behavior: 2.4 ( 5 )        OTA: 3.20

Awards and Decorations ( per DD 214):      (x2) ESWS

Periods of UA /C ONF :

NJP :

- 20090303 :       [Record of NJP extracted from NAVPERS 1616/26 Enlisted Evaluation ]
         Article 108 (Military property of United States - Loss, damage, or wrongful disposition)
         Article 109 (Property other than military property of United States - Waste, spoilage, or destruction)
         Article (General article)
         Awarded / Susp ended : NFIR

S CM :

- 20080918 :       Art icle : Not specified other than Service member found guilty of actions counter to positive command climate and good order and discipline . Sentence :
         [Record of NJP extracted from NAVPERS 1616/26 Enlisted Evaluation]

SPCM:    C C :      Retention Warning Counseling :

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 108, 109, and 134.

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

Applicant’s Issues

1 .       Decisional issues : The Applicant contends that his discharge characterization of service was inequitable in that it was based on one isolated incident in 34 months of otherwise honorable service. The Applicant further contends that his misconduct was further mitigated by personal family problems he was encountering during his period of service.

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. T he 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 both equity and propriety.

The Applicant enlisted at age 20, with waivers for underage alcohol abuse and adjudicated law violations of a serious nature – 3 separate misdemeanor charges. The Applicant ’ s service reflected 2 years of post high-school education and that he enlisted on a 4-year enlistment contract with no extension. The Applicant completed basic recruit training and operations specialist training and was further assigned for duties to the USS MOBILE BAY (CG-53) where he remained until t he date of his discharge from the service .

The Applicant’s record of service include d no NAVPERS 1070/613 retention-counseling warning s and one nonjudicial punishment for violations of the Uniform Code of Mili tary Justice (UCMJ) as follows:

•         Article 108 ( Loss, damage, destruction of military property of the United States )
•         Article 109 ( Waste, spoilage, or destruction of property, other tha n military property of t he United States )
•         Article 134 (General Article – exact specifics of the charge not found in the record ).

Additionally , the Applicant was subject to a summary court - martial in which he was found guilty of actions counter to positive command climate and good order and discipline of the armed forces. The Applicant ’ s official military service record is incomplete in that it does not contain a copy of the administrative separation package. The NDRB presumed regularity in the conduct of governmental affairs regarding the Applicant ’ s election of rights as related to the administrative separation process . The separation code on the Applicant’s DD Form 214 (HKA) documents that the Applicant warranted an administrative board hearing, but waived his right to such a board. On 05 March 2009, the Applicant was discharged due to M isconduct ( P attern of M isconduct ) pursuant to Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN). The Applicant’s characterization of service at discharge was determined by the S eparation Authority to be Under Other than Honorable Conditions and t he Applicant was further assigned a re-enlistment code of RE-4 (not recommended for reenlistment).

: (Decisional) ( ) . T he Applicant contends that his discharge characterization of serv ice was inequitable in that it was based on one isolated incident in 34 months of otherwise honorable service. The Applicant further contends that his misconduct was mitigated by personal family problems he was enduring during his period of service. 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 NDRB to rebut the government’s presumption of regularity.

In regards to propriety, the Applicant’s non-judicial punishment and summary court - martial establish the basis for a pattern of misconduct. Due to the lack of documentation in the Applicant’ service record, the NDRB presumed regularity in the conduct of governmental affairs in that the Applicant received a NAVPERS 1076/613 retention counseling-warning between the documented misconduct of record. The Separation A uthority reviewed and 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 naval service was warranted; he directed that the basis for separation on the DD Form 214 be Misconduct ( Pattern of Misconduct ) . The Separation Authority further directed that the Applicant be discharged with an Under Other Than Honorable Conditions characterization of his service and that he receive an RE-4 reenlistment code (not recommended for reenlistment). The NDRB found that the evidence of record properly established the requirements for separation. As such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate. No relief provided.

Whenever a Sailor is involved in misconduct, as described in Article 1910-140 and 1910-142 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. Moreover, despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval S ervice in order to maintain proper order and discipline. The charge s as specified against the Applicant – violation of Article s 108, 109, and 1 34 of the UCMJ – are serious offenses, punishable by punitive discharge and confinement, if adjudicated by a special or general court-martial. The Applicant’s C ommand ing Officer chose not to pursue punitive actions for the violations of the UCMJ, instead opting to pursue the more lenient NJP and summary court - martial with an administrative discharge process as a means to ensure good order and discipline within the command while also address ing the Applicant’s misconduct and retention in service .

While the Applicant may feel his personal family problems were the underlying causes of his misconduct, he provided no documentation in support of this claim. The Applicant contends the characterization of his discharge should be upgraded because he suffered emotional distress and depression due to family illness. The NDRB recognizes that serving in the military is challenging. Most s ervice m embers, however, serve honorably and therefore earn their honorable discharges. In fairness to those s ervice m embers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for Sailors undergoing personal problems during their enlistment such as the Navy Chaplain, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The Applicant was seen and treated by both medical personnel and credentialed mental health care providers after visiting the Emergency Room for depression. He was evaluated and determined to be suffering from depression resulting from a situational reaction to his mother’s diagnosed illness, further compounded by alcohol abuse. The Applicant was not suicidal, nor homicidal, and did not present a history of any previous depression. The NDRB determined the Applicant’s personal problems were not mitigating factors to offset the responsibility for his misconduct of record .

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. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s service record contains an NJP for violation s of the UCMJ and another act of misconduct that was egregious enough to warrant a summary court - martial.

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and that his personal problems were not enough mitigation to overcome his misconduct . 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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NAVY | DRB | 2010_Navy | ND1000580

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