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NAVY | DRB | 2010_Navy | ND1000608
Original file (ND1000608.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20091113
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6a

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19920516 - 19930215     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19941122      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 6 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 2.6 ( 2 )      Behavior: 2.7 ( 2 )        OTA: 3.0

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 19931108 :       Article (Larceny)
         Awarded : Susp ended:

- 19931223 :       Article ( False official statement )
         Article ( Destruction of military property )
          Awarded : Susp ended:

- 19941019 :       Article (Unauthorized absence)
         Article (Failure to obey an order or regulation)
         Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :

- 19940816 :       For being out of body fat regulations.
- 19940826 :       For trend of degrading performance and professionalism. This includes increasing numbers of unauthorized absences, non-conformance to proper military standar d s, and a lack of adherence to standard safe operating procedures.

- 19941119 :       For assignment of RE-4 reenlistment code.



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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.        The Applicant desires to become eligible for the GI Bill.
2.       The Applicant contends his characterization was inequitable , because his commanding officer recommended a General (Under Honorable Conditions), but it was changed to Under Other Than Honorable Conditions by Chief of Naval Personnel without affording him the chance to exercise his right to request an administrative board.
3. The Applicant contends two incidents of misconduct that led to NJPs were not his fault.

Decision

Date : 20 1 1 0128             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’s record of service included NAVPERS 1070/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( , ), Article ( , ), Article ( False official statement , ) , Article 108 (Destruction of military property, 1 specification), and Article 121 (Larceny, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant desires to become eligible for the GI Bill. 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.

: (Decisional) ( ) PARTIAL . The Applicant contends his characterization was inequitable , because his commanding officer recommended a General (Under Honorable Conditions), but it was changed to Under Other Than Honorable Conditions by Chief of Naval Personnel without affording him the chance to exercise his right to request an administrative board. The record showed the Applicant was notified of administrative separation on 19 Oct 1994 for pattern of misconduct and commission of a serious offense. The notification was clear that the least favorable characterization the Applicant could receive was Under Other Than Honorable Conditions. At this time the Applicant waived all of his rights , including his right to request an administrative board. In the commanding officer’s recommendation letter to the Chief of Naval Personnel, he recommended the Applicant receive a General (Under Honorable Conditions) characterization of service. This supports the Applicant’s contention that he waived his right to an administrative board , because it was his understanding that he would r eceive a General (Under Honorable Condition s) discharge and so would not need an administrative separation board . The record shows the Applicant submitted a letter of deficiency to the Chief of Naval Personnel explaining his circumstances and requesting to receive an administrative board on 18 Nov 1994. The record also shows the Applicant did not receive an administrative board and was subsequently discharged with an Under Other Than Honorable characterization of service with a separation code of HKA , indicating his board was waived. The NDRB determined that while the Applic ant’s discharge was proper, it was not equitable. The NDRB determined the Applicant’s issue to be reasonable and supported by documentation in the record. The NDRB decided, while the Applicant had waived his administrative board, he did so because he thought he would receive a General (Under Honorable Conditions) characterization, and should have been afforded an opportunity for a board when it was determined he would receive a less favorable characterization. An upgrade to General (Under Honorable Conditions) is warranted on equitable grounds with no change to the narrative reason.



: (Decisional) ( ) . The Applicant contends two incidents of misconduct that l ed to NJPs were not his fault. The record shows the Applicant was properly charged and found guilty at NJP on three occasions. While the Applicant contends that the events leading to two of these NJPs were not entirely his fault due to making some poor decisions and improperly handling circumstances , he provided no documentation or other evidence to further support his contention or to indicate the NJPs in question were improper or inequitable. The NDRB disagreed with the Applicant’s contention and determined no change was warranted for this issue.

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, 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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