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NAVY | DRB | 2010_Navy | ND1000766
Original file (ND1000766.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20100128
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)        20000331 - 20000418     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000419     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000721      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 71
Evaluation M arks:         Performance: NONE         Behavior: NONE   OTA: NONE

Awards and Decorations ( per DD 214):      NONE

Periods of C ONF : (Pre-Trial Confinement) 20000705 - 20000721 ( 15 days )

NJP :     S CM :    SPCM:

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ MILPERSMAN 1910-142 ”

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:                  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 28, effective 30 March 2000 until
29 August 2000, 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 91, 95, 108, and 128 .



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

Applicant’s Issues

 1.        Applicant seeks a change to RE code and a discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant contends his youth and immaturity were causal in the misconduct for which he was discharged.
3.       Applicant contends his post-service achievements are indicative of his true character.

Decision

Date : 20 1 1 03 03             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 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 did not contain any NAVPERS 1070/613 (Page 13) retention warnings or commanding officer’s nonjudicial punishment (NJP). The record s did reflect that the Applicant had been placed in pre-trial confinement awaiting prosecution by Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, failed to go to appointed place of duty, 3 specifications , during recruit training ); Article 91 (Insubordinate conduct toward noncommissioned officer , Disrespect, 6 specifications , and Disobeying superior noncommissioned and noncommissioned petty officers , 8 specifications, during recruit training (Apr-Jul 2000) , during apprehension from UA (5 Jul 00), and during pre-trial confinement (5-21 Jul 2000)); Article 95 ( Resisting apprehension, 5 Jul 2000) ; Article 108 (Willful damage of military property, 3 specifications, government van (5 Jul 2000) and brig cell during pre-trial confinement (5-21 Jul 2000)); Article 128 ( Assault , upon security policemen and master at arms, during apprehension from UA (5 Jul 00), and during pre-trial confinement (5-21 Jul 2000) ) ; and Article 134 ( General Article, 2 specifications, Wrongful possession of stolen property and Disorderly conduct ). The record also contained a Mental Health Evaluation Progress Report on the Applicant that diagnosed him with AXIS I : Oppositional Defiant Disorder and AXIS II: Narcissistic Personality Disorder.

For reasons not specified in the record, the Applicant’s command withdrew the referral of charges for trial by Special Court-Martial on 21 Jul 2000 and opted to process the Applicant f or a dministrative s eparation. When notified of administrative separation processing using the procedure on 21 Jul 2000 , the Applicant exercised right to consult with a qualified counsel but elected to waive his rights to submit a written statement and request an administrative separation board .

: (Nondecisional) The Applicant seeks a change to RE code and a discharge upgrade to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his youth and immaturity were causal in the misconduct for which he was discharged. Normally, when a Sailor is separated from the Navy within the first 180 days of continuous active service (Entry Level Separation), the discharge is Uncharacterized as per the Naval M ilitary Personnel Manual (MILPERSMAN). However, in certain circumstances , an Under Other Than Honorable Conditions discharge is warranted based on the circumstances and specifics related to the UCMJ violations/offenses, and whether the offenses are punishable by punitive discharge as a result of trial by a punitive courts-martial (Special or General). Based on the circumstances surrounding the Applicant’s misconduct and in accordance with the MILPERSMAN , Commander, Naval

Training Center Great Lakes authorized and directed that the Applicant be separated from the Navy for Commission of a S erious O ffense and awarded an U nder O ther T han H onorable C onditions discharge . While he may feel his youth and immaturity w ere the underlying cause of his misconduct, the record clearly reflects his significant misconduct during his three months in the Navy was willful and demonstrated he was unfit for further service. As such, the NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct. Relief d enied.

: (Decisional) ( ) . The Applicant contends his post-service achievements are indicative of his true character. The Applicant submitted documentation that included: college transcripts, five course completion certificates, and six college scholars list certificates. Though not submitted, documentation could have also included: letters of personal references ; a verifiable employment record ; letter (s) of recommendation from his employers; certification of non-involvement with civil authorities ; evidence of financial stability; college or vocational school transcripts; documentation of community or church service; and marri age or birth certificates (as applicable). 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. After careful consideration of the documentary evidence submitted by the Applicant and the specific circumstances surrounding the misconduct for which he was separated, the Board determined that his post-service achievements did not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and administrative separation 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 for additional information.


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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