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NAVY | DRB | 2010_Navy | ND1000957
Original file (ND1000957.rtf) Auto-classification: Denied

ex-ABHAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100225
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)        20030731 – 20030819     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030820     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061003      Highest Rank/Rate: ABHAN
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.59

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : UA : 20060504-20060823, 111 days / CONF:

NJP :

- 20040927 :      Article (Failure to obey an order or regulation – dereliction of duty)
         Awarded: Suspended: ALL BUT $300.00

- 20060309 :      Article (Wrongful appropriation)
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

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 19 May 2008, 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.       Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) in order to receive Department of Veterans Affairs educational benefits.

2.       Decisional issues : The Applicant did not identify any issues of propriety or equity for the NDRB’s consideration.

Decision

Date: 20 1 1 0407            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 NDRB 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 did not identify any issues of propriety or equity to the NDRB; however, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant enlisted at age 18 on a four-year enlistment contract with no extension with a guarantee of training in the Seafarer Airmen Apprenticeship program. The Applicant’s record of service reflects two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : Article 92 ( Failure to obey an order or regulation , specifically, dereliction of duty) and Article 121 (Larceny , specifically, wrongful appropriation). Additionally, the Applicant’s record of service includes an unadjudicated violation of Article 86 - absent without leave - in which the Applicant absented himself from his unit, without authority, missing his ship ’ s movement, and did so remain absent for a period of 111 days. During this period, the Applicant was declared a deserter and subsequently dropped from his unit’s rol l s. The Commanding Officer issued a DD Form 553 ( Deserter/Absentee Wanted by the Armed Forces ) to all Federal, State, and l ocal l aw e nforcement a gencies seeking his apprehension and return to military custody. The Applicant surrendered himself to military custody at Naval Station Great Lakes , thereby terminating his desertion status and returning himself to military authority.

The Applicant’s official military service record is incomplete in that it does not contain a copy of the administrative separation package or his formal counseling records (NAVPERS 107 6 /613 retention-counseling warning s ). The NDRB presumed regularity in the conduct of governmental affairs regarding the Applicant’s election of rights and counseling as related to the administrative separation process. However, t he separation code on the Applicant’s DD Form 214 (HKA) documents that the Applicant warranted an administrative board hearing, but waived his right to require such a board. On 26 September 2006, the Separation Authority approved the recommendation for separation ; he determin ed that the evidence of record supported the basis for discharge and that the characterization of service, as recommended , was warranted . P ursuant to Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN ) , the Applicant was discharged on 03 October 2006 with an Under Other Than Honorable Conditions characterization of his service . H e was further advised that he was not recommended for future re-enlistment and was assigned a reentry code of RE-4 on his DD Form 214.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) in order to receive Department of Veterans Affairs (VA) educational benefits . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or other educational opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.



( NDRB Board Issue) ( ) . The Applicant did not identify any issues of propriety or equity to the NDRB; however, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no documentation to the NDRB to rebut the government’s presumption of regularity.

In regards to propriety, the Applicant’s two nonjudicial punishment s with formal retention counseling establish the basis for a pattern of misconduct. Due to the lack of documentation in the Applicant’ service record, the NDRB presumed regularity in the conduct of governmental affairs in that the Applicant received a NAVPERS 1076/613 retention counseling-warning between the documented misconduct of record. The Separation Authority reviewed and concurred with the recommendation of the Commanding Officer and directed that the Applicant be discharged. The NDRB found that the evidence of record properly established the requirement for separation. As such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate. No relief provided.

Whenever a Sailor is involved in misconduct, as described in Article 1910-140 of the MILPERSMAN, commanders are authorized to process the Sailor for separation, unless rehabilitation and retention are warranted. Additionally , despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline. The charges as specified against the Applicant – violation of Articles 92 and 121 – can be serious offenses, punishable by punitive discharge and confinement, if adjudicated by a special or general court-martial. The Applicant’s Commanding Officer chose not to pursue punitive actions for the violations of the UCMJ, instead opting to pursue the more lenient NJP and administrative discharge .

Characterization of service is founded on the recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. An Under Other Than Honorable Conditions discharge however, is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s service record documents two NJP s for violations of the UCMJ , coupled with an un authorized period of absence for 111 days. The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. As such, the awarded characterization of service as, issued, was equitable; furthermore, it is consistent with the characterization of discharge given others in similar circumstances.
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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