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NAVY | DRB | 2010_Navy | ND1000741
Original file (ND1000741.rtf) Auto-classification: Denied

ex-MRFA, USN
Current Discharge and Applicant’s Request
Application Received: 20100120
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)        20050131 - 20051114     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051115     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080606      Highest Rank/Rate: MRFN
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.50

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 2 0061117 :       Article (Failure to obey order by consuming alcohol before attaining the age 21)
         Awarded : Susp ended: (both suspended 6 months)

- 20071130 :       Article (Failure to obey lawful general order or regulation by consuming alcohol before attaining the age of 21)
         Article 134 ( General article), 2 specifications
         Specification 1: False o r unauthorized pass offense-tampered with a Military Identification Card
         Specification 2: Drunk and disorderly conduct
         Awarded : Susp ended:

- 20080523 :       Article 92 (Failure to obey a lawful general order) , 2 specifications
         Specification 1: Wrongfully engaging in acts of hazing
         Specification 2: Failure to report violation of the DON policy on hazing
         Article 108 (Willful damage of government property for use to engage in acts of hazing)
         Article 128 (Simple assault upon shipmates), 2 specifications   
         Awarded : (to E-2) Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060105 :       For numerous negative entries on your Recruit Personnel Data Record (Hard Card) to include: continuous anger problems, talking in the galley and while in ranks, constant disruption in the division, sub-standard performance, and overall lack of military bearing.


- 20061122 :       For violation of article 92, failure to obey a lawful order by consuming alcohol before attaining the age of 21.

- 20071130 :       For violation of article 92, failure to obey a lawful general order or regulation by consuming alcohol before attaining the age of 21; article 134, (2 specs)- Wrongfully and falsely tamper with a military identification card and drunk and disorderly.

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 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 92 , 108 .



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

Applicant’s Issues

 1.        Applicant contends his discharge was hasty and unjust based on his record of service.
2.       Applicant contends he was unjustly punished and subsequently separated for underage drinking and hazing incidents.
3.       Applicant contends he was not afforded legal counsel or the opportunity to question the General (Under Honorable Conditions) discharge he received upon separation from the Navy.

Decision

Date : 20 1 1 03 24             Location: Washington D.C .        R epresentation : Humboldt VSO

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 three decisional issues for the Board ’s consideration .
Although the Applicant’s records were incomplete (no administrative separation package or evaluations for last 12 months of service), t he Board complete d a thorough review of the available documentation and 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) retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order, regulation, 4 specifications: 17 Nov 06 and 30 Nov 2007, underage drinking; 23 May 2008, wrongfully engaged in acts of hazing, specifics NFIR; 23 May 2008, simple assault on shipmates, specifics NFIR); Article 108 (Willful damage of government property for use to engage in acts of hazing, 23 May 2008, specifics NFIR); Article 128 (Assault, 2 specifications, simple assault on shipmates, 23 May 2008) , and Article 134 ( General Article, 2 specifications: false or unauthorized pass offense and drunk and disorderly conduct, 30 Nov 2007). The records also included a Page 13 counseling (dated 10 Jul 2006) from his ship in which the Applicant initialed and signed his acknowledgment of the U.S. Navy Policies on Hazing and Underage Drinking/Alcohol Abuse. 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 an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his discharge was hasty and unjust based on his record of service. A review of the Applicant’s service record indicates an established pattern of disregard for rules and regulations and general misconduct starting in Recruit Training at Great Lakes, I llinois . On 5 Jan 2006, he received a NAVPERS 1070/613 retention warning for “ numerous negative entries on your Recruit Personnel Data Record (Hard Card) to include: continuous anger problems, talking in the galley and while in ranks, constant disruption in the division, sub-standard performance, and overall lack of military bearing . ” Later the same year while assigned to his first duty station aboard ship, he was found guilty at Commanding Officer’s NJP for violation of UCMJ Article 92, underage drinking (17 Nov 2006). One year later , he went to NJP and was found guilty of numerous violations to include underage drinking, drunk and disorderly conduct, and false or unauthorized pass offense- tampering with military ID card (30 Nov 2007). Six months later, on 23 May 2008, he again went to Commanding Officer’s NJP and was found guilty of violating UCMJ Articles 92 (Engaging in hazing, and failure to report hazing ) , Article 108 (Willful damage to Government property), and Article 128 (Simple assault on shipmates, 2 specifications). Violations of UCMJ Articles 92 and 108 are considered a serious offense s and punishable by six months to one year confinement and a Bad Conduct Discharge if awarded at trial by punitive courts-martial (Special or General). The Applicant’s command chose not to refer him to trial by courts-martial, but opted instead to process him for the more lenient administrative separation.

The Applicant’s record reflected no receipt of meritorious personal awards for achievement or superior performance. There was one Evaluation Report (Jul 06 Jul 07) that contained positive comments regarding the Applicant’s motivation, resourcefulness, positive attitude, perform a n c e and an Overall Trait Average of 3.50. There were no other reports in the record covering his last 12 months of service in which he received the two aforementioned NJPs. Per the Naval Military Personnel Manual , a Sailor may be awarded a General (Under Honorable Conditions) discharge if a 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. Based on the Applicant’s established pattern of disregard for adhering to the rules and regulations governing the good order and discipline of the Naval Service, the Applicant’s command, after assessing his in-service performance, elected to characterize his service as General (Under Honorable Conditions) . A fter considering the available evidence, the Board determined that the administrative separation of the Applicant was proper and equitable, and in accordance with the orders and directives in effect at the time of his separation from the Navy. Relief denied.

: (Decisional) ( ) . The Applicant contends he was unjustly punished and subsequently separated for underage drinking and hazing incidents. 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 submitted two letters of personal reference, but submitted no documentation to support his claim of impropriety and inequity in the nonjudicial punishment s received in October 2006 and May 2008, and the subsequent administrative discharge for Misconduct ( S erious O ffense). Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support his claim . W ithout sufficient documentary evidence to rebut the presumption of regularity , the NDRB cannot form a basis of relief. Relief denied.

: (Decisional) ( ) . The Applicant contends he was not afforded legal counsel or the opportunity to question the General (Under Honorable Conditions) discharge he received upon separation from the Navy. The Applicant’s records did not contain the administrative separation package that includes the official notification, from the commanding officer to the service member, of initiation of processing for administrative discharge. On the notification form, the command is required to inform the member of the reason for separation, the least favorable character of service that may be awarded the member, and the list of rights available to the member to include the right to consult with qualified counsel. Since the documents were not available for review, the Board presumed regularity in the conduct of governmental affairs in the processing and subsequent discharge of the Applicant. Without substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant , the Board determined this issue did not provide a basis for which relief could be granted. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the letters of reference submitted on his behalf, 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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