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NAVY | DRB | 2010_Navy | ND1001019
Original file (ND1001019.rtf) Auto-classification: Denied

ex-AMEAA, USNR
Current Discharge and Applicant’s Request
Application Received: 20100309
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)        19950121 - 19950725     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950726     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19981125      Highest Rank/Rate: AME3
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.17

Awards and Decorations ( per DD 214):      Pistol JMUA

Periods of UA /C ONF :

NJP :

- 19980710 :       Article (Debts, dishonorably failing to pay)
         Awarded : Susp ended:

- 19981003 :       Article (Failure to obey order or regulation)
         Article (Wrongful appropriation)
         Article 134 (Debt, dishonorably failing to pay)
         Awarded : Susp ended:

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 18, effective 12 December 1997 until
29 March 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 s 92, 121, and 134.



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 his characterization of service at discharge in order to facilitate better employment.

2.       Decisional issues : The Applicant contends that his youth and immaturity at the time of his service were mitigating factors to his misconduct; as such, he seeks a review and upgrade in the characterization of his service at discharge.

Decision

Date: 20 1 1 0429            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 identif ied one decisional issue for the NDRB’s consideration; in addition , the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service reflects entry into the military without waiver at age 17 for a 4 - year contract with no extension. He enlisted in the Training and Administration of Reserves (TAR) Program with a guaranteed training program of Aviation Structural Mechanic-Safety Equipment . Throughout his enlistment period, the Applicant received no NAVPERS 1070/613 retention-coun seling warnings. The Applicant’s period of enlistment under review did , however , include two nonjudicial punishments for violation s of the following Articles of the Uniform Code of Military Justice:

•         Article 92 ( Failure to obey an order or regulation)
•         Article 121 (Larceny , wrongful appropriation )
•         Article 1 34 ( Debt, dishonorably failing to pay; 2 separate specifications ) .

The NDRB was unable to verify the Applicant’s notification of rights and acknowledgment and presumed regularity in governmental affairs in this case in the absence of a discharge package in his service record. However, the Applicant’s DD Form 214 documents a separation code of HKQ - Misconduct by commission of a serious offense, administrative discharge board warranted, but waived. Based on the Applicant’s misconduct of record, his command recommended separation with the least favorable characterization of service being Under Other Than Honorable Conditions. T he Separation Authority approved the recommendation for separation, designating that the basis for separation be M isconduct ( Commission of a Serious Offense) , having determined that the evidence of record supported the proposed basis for discharge and that the characterization of service as recommended was warranted. The Applicant was discharged on 25 November 1998 with an Under Other Than Honorable Conditions characterization of his service; he 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 his characterization of service at discharge in order to facilitate better employment opportunities and for eligibility for employment with civil service agencies. There is no requirement, or law, that grants re-characterization solely for the purpose of enhancing employment or educational opportunities. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.



Decisional Issue ( ) . The Applicant contends that his youth and immaturity at the time of his service were mitigating factors to his misconduct . In accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN), service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court - martial for the same or closely related offense. The Applicant’s violation of Articles 92, 121, and 1 34 of the UCMJ warrant punitive discharge and confinement for up to two year s , if adjud ged at trial by court - martial. Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the MILPERSMAN for separation based on the commission of a serious offense as a basis for discharge. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. Relief based on propriety is denied.

T he Applicant contends that his youth or immaturity was the underlying cause of his miscon duct . The NDRB recognizes that many of our service me n and women are young at the time they enlist for service , but most still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason to mitigate deliberate, conscious acts of misconduct. As such, t he NDRB determined th at the discharge action was consistent with service policy and was warranted .

A service member’s characterization of service is founded on the recognition of his 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 acceptable 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. However, an Under Other Than Honorable Conditions discharge 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. Based on the seriousness of the offenses and the Applicant’s performance and conduct at the time , the Command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be separated for Misconduct ( Commission of a Serious Offense) and that he be separated Under Other Than Honorable Conditions without recommendation for re entry into the armed services.

Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The NDRB found the characterization of the Applicant ’ s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances. Accordingly, a fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the A pplicant ’ s service at discharge. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted. Therefore, the character of the discharge and the reason for discharge shall not change. 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 NDRB determined that the discharge was both proper and equitable as issued. 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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