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NAVY | DRB | 2010_Navy | ND1000767
Original file (ND1000767.rtf) Auto-classification: Denied

ex-SA, 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)        20071024 - 20080427     Active:   USMC 1998 (ELS)

Period of Service Under Review:
Date of Current Enlistment: 20080428     Age at Enlistment: 27
Period of E nlistment : Years Extension
Date of Discharge: 20080926      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 82
Evaluation M arks:         Performance: None         Behavior: None   OTA: None
Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF : UA 20080814 - 20080817 (3 days),    UA 20080818 - 20080825 (7 days)

NJP :
- 20080903 :       Article (Absence without leave), 2 specifications
         Specification 1: UA 20080814-20080817 (3 days)
         Specification 2: UA 20080818-20080825 (7 days)
          Awarded : (30 days) to E-2 Dismissed from training Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20080903 :       For unauthorized absence.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 21 May 2008 until 9 November 2009, Article 1910-154, SEPARATION BY REASON OF ENTRY LEVEL PERFORMANCE AND CONDUCT.
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 seeks upgrade and a change to RE code to reenlist in the U.S. Armed Forces.
2.       Applicant contends his financial hardship led to the misconduct for which he was separated.

Decision

Date : 20 1 1 02 24             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 one decisional issue 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 standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning on 3 Sep 2008 for unauthorized absence (UA) and nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence from Naval Dive and Salvage Training Center Panama City , FL , 2 specifications: UA 14-17 Aug 2008; UA 18-25 Aug 2008). Based on the offenses committed by the Applicant, command dismissed him from explosive ordnance disposal (EOD) training and administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and r equest a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant seeks upgrade and a change to his RE code 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 financial hardship led to the misconduct for which he was separated. There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Navy is challenging. However, members of the Naval service are expected to uphold the high standards of conduct as evidenced by our Core Values of Honor, Courage, and Commitment no matter the environment or mission in which assigned. Therefore, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.
By regulation, an U ncharacterized description shall be used when separation is initiated while a service member is in an entry level status ( within the first 180 days of continuous active duty service) , except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as U nder O ther T han H onorable C onditions, or when characterization of service as H onorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant's service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than five months in the military that would clearly warrant an H onorable characterization of service.


With respect to the narrative reason for separation, Entry Level Performance and Conduct, the Naval M ilitary Personnel Manual states that a member must have received and subsequently violated a NAVPERS 1070/613 (Page 13) retention warning that specifically addressed the member’s unsatisfactory performance and/or conduct. The Board found no evidence of this required retention warning in the Applicant’s record. Hence, t he Board determined th at the disenrollment from EOD training was proper, but the subsequent administrative separation from the U.S. Navy, though warranted based on the Applicant’s willful misconduct, was improper as it was not conducted in accordance with the orders and directives in effect at the time of separation. Therefore, the narrative reason for separation of Entry Level Performance and Conduct is improper .

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 change to .

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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