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NAVY | DRB | 2010_Navy | ND1000847
Original file (ND1000847.rtf) Auto-classification: Denied

ex-HTFN, USN
Current Discharge and Applicant’s Request
Application Received: 20100217
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)        20020110 - 20020710     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060316      Highest Rank/Rate: HT3
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 3.70 ( 3 )       OTA: 3.62 (3)
         * Incomplete records; contains evaluation reports through June 2004 only)
Awards and Decorations ( per DD 214):      (2)

Periods of UA : UA 20040919 - 20050102 (105 days), UA 20050801 - 20060219 (202 days)

NJP :

- 20030129 :      Article (Failure to obey order, regulation, underage drinking)
         Awarded: Susp ended:

- 200 3 1 002 :      Article ( Failure to obey order, regulation )
                   Article ( General Article )
                  Awarded: (to E-1) RESTR EPD Suspended: (6 months)

- 20050 114 :      Article ( Unauthorized absence) , 20040919-20050101 (105 days)
                  Article ( Missing ships movement ) , 6 specifications
                  Specification 1: 20040913
                  Specification 2: 20040922
                   Specification 3 : 20041013
                  Specification 4 : 20041024
                  Specification 5 : 20041107
                  Specification 6 : 20041112
                  Awarded: (to E-3) RESTR EPD Suspended: (6 months)

- 20050623 :      Article (Failure to obey order, regulation)
         Article (Disorderly conduct, drunkenness)
         Awarded: Suspended:

S CM :             SPCM:             C C :



Retention Warning Counseling :

- 20030117 :       For deficiency in your performance/conduct in violating UCMJ Article 92 Underage Drinking.

- 20030129 :       For deficiency in your performance/conduct in poor military performance, to wit: Underage Drinking.

- 20031002 :       For deficiency in your performance/conduct in violating UCMJ Article 92, Failure to Obey an Order or Regulation.

- 200 50114 : For deficiency in your performance/conduct in violating UCMJ Article 86 , Unauthorized A bsence, and
                  Article 87, Missing Ship ’ s Movement .
- 200 50623 : For deficiency in your performance/conduct in violating UCMJ Article 92 , Failure to obey an Order or
                  Regulation, and Article 134, Disorderly Conduct, Drunken n ess.

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 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C . 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 .

D . 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 86 , 87, and 92 .



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

Applicant’s Issues

 1.        Applicant seeks upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant seeks upgrade to improve employment opportunities.

Decision
Date : 20 1 1 03 10             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 did not identify any decisional issues for the Board’s consideration. However, 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 proprie ty. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warnings for: Underage drinking (17 Jan 2003 and 29 Jan 2003) , Failure to O bey an Order or Regulation (2 Oct 2003), Unauthorized Absence and Missing Ship ’ s Movement (14 Jan 2005), and Failure to Obey an Order or Regulation and Disorderly Conduct, Drunkenness (23 Jun 2005). The record also contained for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence, 19 Sep 2004-2 Jan 2005, 105 days ) ; Article 87 ( Missing ship ’ s movement , 6 specifications: 13 Sep, 22 Sep , 13 Oct, 24 Oct, 7 Nov, 12 Nov 2004 ) ; Article 92 ( Failure to obey an order or regulation, 3 specifications: underage drinking , and 2 other incidents, specifics NFIR ) ; and Article 134 ( General Article , 2 specifications: Disorderly conduct, drunkenness, and one other incident, specifics NFIR ). The records also reflected that the Applicant again violated UCMJ Article 86 (UA) from 1 Aug 2005 to 19 Feb 2006 (202 days) , but an entry was placed in the service record via NAVPERS 1070/613 stating “no disciplinary action was taken” for the period of absence . Based on the offenses committed by the Applicant, command referred him to trial by Special Court-Martial. The Applicant, after consult with qualified counsel, submitted a request to his commanding officer for administrative separation in lieu of trial by court-martial (SILT) . In the request, the Applicant, in exchange for pleading guilty to the offenses in which he was charged , offered to accept administrative separation with a chacterization of service no less than Under Other Than Honorable Conditions, thereby avoiding a possible conviction and punitive discharge by punitive c ourt- m artial . The command accepted the Applicant’s request , and he was subsequently administratively separated on 16 Mar 2006.

: (Nondecisional) The Applicant seeks an upgrade to reenlist in the U.S. Armed Forces. Th e NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Additionally, 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. 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.
: (Nondecisional) The Applicant seeks an upgrade to improve employment 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.
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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