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NAVY | DRB | 2010_Navy | ND1000679
Original file (ND1000679.rtf) Auto-classification: Denied

ex-ADAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100105
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)        199 51103 - 19960103     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19960104     Age at Enlistment:
Period of E nlistment : Years 44 MONTHS Extension (24 mos, 19960521; 20 mos, 19990519)
Date of Discharge: 19991223      Highest Rank/Rate: AD 3
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 55
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.11 (5)

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 19990824 :      NJP [ E xtracted from NAVPERS 1070/604, Awards and NAVPERS 1070/613, Administrative Remarks]
         Awarded: NFIR Suspended: NFIR
- 19991118 :      Article (Failure to obey lawful order , 19990802 )
         Article (False official statement), 2 specifications , 19990721 and 19990924
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 19990824 :      For your misconduct as evidenced by commanding officer’s NJP 19990824 .

NDRB Documentary Review Conducted (date):        20030331
NDRB Documentary Review Docket Number:   ND02-00930
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ NAVMILPERSMAN 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 until 21 August 2002,
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.       Applicant contends he was treated unfairly by his chain of command, and thereby warrants an upgrade.
2.       Applicant seeks upgrade based on his post-service achievements.
Decision

Date: 20 10 1208             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 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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning for misconduct and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order, regulation on 2 Aug 1999, specifics NFIR) and Article 107 ( False official statement, 2 specifications, on 21 Jul and 24 Sep 1999, specifics NFIR ) . Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review .

: (Decisional) ( ) . The Applicant contends he was treated unfairly by his chain of command , and thereby warrants an upgrade. 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. During the hearing, the Board spent a considerable amount of time questioning the Applicant in all aspects of his in-service career, to include his initial accession, job specialty training, and serv ice in the operational forces. The Board could not find substantive evidence anywhere with in the records or in the Applicant’s documentary evidence to support his claim. Contrariwise , the Board noticed that the service records reflected the Applicant’s chain of command thought highly of him and recognized his work ethic, achievements , and the example that he set as evidenced in two letters of commendation he received from the Commanding Officer Naval Air Technical Training Center, TN and several evaluation and counseling report comments he received during service in the fleet aboard USS Merrimack and VF-32. Though he had been academically dropped from Advanced Electronic Technical Core School in February 1997 and had failed to maintain minimum U.S. Navy body fat/physical standards for several months in 1996, the Applicant’s attitude and work ethic were instrumental in his retention in the Navy and his ability to “strike” for the AD rating.

The Applicant was referred to NJP in August 1999 where he was found guilty of inappropriately/fraudulently using a government purchase credit card for his own personal use. Less than three months later in November 1999, he again was referred to NJP and found guilty of violating Article 92 (Failure to obey order, regulation) and 107 (False official statement, two specifications) , which involved possessing a second government purchase that he had previously lied about. These offenses are considered serious and are punishable by confinement up to five years and a bad conduct or dishonorable discharge if adjudicated at a punitive (special or general) court-martial. Based on these offenses and his overall record of service, his command opted not to refer him to trial by court-martial, but instead administratively processed him for separation. Moreover, instead of being discharged with an Under Other Than Honorable Conditions discharge, the Applicant received a General (Under Honorable Conditions) characterization , which is awarded to service members when their 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. After considering the facts and all the available evidence, the Board determined this issue to be without merit and did not provide a basis upon which relief could be granted. RELIEF DENIED.

: (Decisional) ( ) . The Applicant seeks an upgrade based on his post-service achievements. The Applicant provided documentation that included: a personal statement; verifiable employment record; a current resume; college transcripts; contractor’s license certification; credit history report; criminal records check; commercial driving records check; and evidence of a drug and alcohol-free lifestyle. 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.
The Board conducted a detailed review of the Applicant’s post-service achievements to include his work history and experience, excellent credit report rating, pursuit of advanced education, academic performance transcripts, and his lack of involvement with police and civilian authorities. After careful consideration, the Board determined that though his post-service achievements are positive and commendable, they did not overcome the seriousness of the offenses committed while in service. The Applicant’s in-service conduct, which forms the primary basis for determining the character of service, reflected that the Applicant failed to meet the requirements of conduct expected of all Sailors, especially considering his age, grade , and length of service, and falls short of what is required for an upgrade to Honorable.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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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