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NAVY | DRB | 2010_Navy | ND1000799
Original file (ND1000799.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20100127
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19951127 - 19960310     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960311     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980327      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 1.6 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 2.00

Awards and Decorations ( per DD 214):     

Period s of UA /CONF : 19961006-19961007 (22 hours) ; 19980128-19980226 ( 29 days ) /

NJP :
- 19970221 :       Article 86 (U nauthorized absence - 4 specifications of failing to go to his appointed place of duty)
         Awarded : Susp ended:

- 19971114 :       Article 86 ( Unauthorized absence - failing to go to his appointed place of duty)
         Article 91 (Disobeying a lawful order, disrespect to a PO 1 )
         Article 107 (Fals e official statement )
         Awarded : Susp ended:

- 19980226 :       Article 86 (Unauthorized absence for 29 days )
         Article 92 ( Failure to obey an order or regulation -d erel iction of duty )
         Article 121 (Larceny)
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling :
- 19970218 :       For unauthorized absence.
- 19971114 :       For unauthorized absence, disrespect, disobeying a lawful order , and false official statement.





Administrative Corrections to the Applicant’s DD 214

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

          “ PATTERN OF MISCONDUCT ”
         “ 19980128 TO 19980226 ”

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 18, effective 12 December 1997 until
14 December 1998, 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. The Applicant contends his misconduct was due to youth and immaturity and a mental breakdown after being made to strip and wax the same space for almost two years.
2 . The Applicant believes his post-service is worthy of consideration.
Decision

Date: 20110414 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete 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) warning s and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence - 6 specifications , five for failing to go to his appointed place of duty and one for 29 days ), Article 91 (Disobeying a lawful order, disrespect to a PO1), Article 92 (Failure to obey an order or regulation - dereliction of duty), Article 107 (False official statement) , and Article 121 (Larceny). 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, to submit a written statement for consideration by the separating authority, and to request an administrative board or a General Court-Martial Convening Authority review.

 : (Decisional) ( ) . The Applicant contends his misconduct was due to youth and immaturity and a mental breakdown after being made to strip and wax the same space for over two years. The NDRB determine d that the Applicant ’ s youth, age , and anger were not mitigating factor s in his misconduct. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. In the Applicant’s less than two years in the Navy, he received two retention warnings and was found guilty at three NJPs . He violated five articles of the UCMJ, including larceny and being UA for 29 days. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Additionally, the Applicant stated he received two Good Conduct Medals. This is incorrect. The confusion likely arose from the Awards page in his service record, which lists two Good Conduct Medal eligibility restart dates, which occurred after each of his NJPs. To be awarded a Good Conduct Medal, a servicemember must serve for three years without any misconduct. The Applicant had three NJPs in his less than two years of Naval service.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. Although the Applicant states he is married with two children, a master mason, a member of the Christian Motorcycle Association , and provided several character references , he failed to provide any other documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the A ddendum with the full understanding completion of these items alone does not guarantee an upgrade. Based on the limited post - service documentation provided, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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 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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