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NAVY | DRB | 2010_Navy | ND1001116

Original file (ND1001116.rtf) Auto-classification: Denied

ex-EMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20100330

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)        19990409 - 19991129 ELS Active:
USNR (DEP) 20000202 - 20000412 COG

Period of Service Under Review:
Date of Current Enlistment: 20000413     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041206      Highest Rank/Rate: EM3
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of U A : 20020506 - 20020601 ( 26 days - terminated by civilian law enforcement apprehension ) ; 0600-1500, 20020822 (1 day); 0700-1600, 20020825 (1 day)

Periods of CONF: None found in record

NJP :

- 20020612 :       Article (Unauthorized absence - 26 days, terminated by apprehension )
         Article (Failure to obey order or regulation)
         Awarded : Susp ended:

- 20020914 :       Article (Unauthorized absence , 22 Aug 2002, 25 Aug 2002 )
         Awarded : Susp ended:

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

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MISCONDUCT ”
         “ (26) 20020506-20020601 ; (1) 20020822); (1)
20020825 ”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 92 .

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

Applicant’s Issues

1 . The Applicant did not identify any issues.

Decision

Date: 20 1 1 0513 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 identif y any specific issue for the NDRB’s consideration; however , 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 provided no documentation to rebut the NDRB’s presumption of regularity in governmental affairs. T he A pplicant’s period of enlistment does include two nonjudicial punishment s for violation of the Uniform Code of Military Justice (UCMJ) : Article 86 (Unauthorized Absence - 3 separate specifications) and Article 92 (violation of lawful orders or regulations - 1 specification) . Additionally, the A pplicant’s DD Form 214 documents an assigned separation code of GKD , which documents the specific basis for separation as MISCONDUCT - absence without leave for 30 days or more. The NDRB did not have the Applicant’s administrative separation package to determine the facts related to the period of unauthorized absence in excess of 30 days or whether the Applicant waived his right to consult with qualified counsel or to submit a written statement. As such, the NDRB applied the presumption of regularity of governmental affairs in the absence of a complete discharge package and supporting documentation . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue; the Applicant provided no documentation to the NDRB related to the discharge or to rebut the NDRB’s presumption of regularity.

( NDRB Issue ) ( ) . In accordance with Article 1910-142 of the 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 th at offense would warrant punitive discharge if adjudicated at trial by court-martial. Furthermore, administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. The Applicant’s service record formally documents a determination of guilt for violation of Article 92 of the UCMJ ( failure to obey orders or regulations) at a nonjudicial punishment (Captain’s Mast) held on 12 June 2002 . In accordance with the Manual for Courts-Martial, violation of Article 92 of the UCMJ warrants a punitive discharge and confinement for up to two years , if adjudicated at trial by court-martial; thus, violation of Article 92 meets the requirement of the MILPERSMAN for administrative separation due to the commission of a serious offense. In addition, the Applicant’s DD Form 2 14 documents the specific basis for separation as MISCONDUCT pursuant to a period of unauthorized absence in excess of 30 days. A violation of Article 86 (Absence without leave) - in excess of 30 days - also warrants a punitive discharge and confinement for up to one year, if adjudicated at trial by court-martial. B ased on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct satisfied the requirements established for separation based on Misconduct (commission of a serious offense) as a basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied.

(NDRB Issue) ( ) . An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s

service record. Based on the seriousness of the offense s of record committed the Applicant, the Command recommended separation with a General (Under Honorable Conditions) characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the misconduct and directed the Applicant be separated for MISCONDUCT ( Commission of a Serious Offense – unauthorized absence in excess of 30 days ) and that he be separated with a General (Under Honorable Conditions) characterization. Since the NDRB could not fully evaluate the Applicant’s conduct during his enlistment, the NDRB relied on a presumption of regularity in the conduct of its affairs. There is no evidence in the record, nor has the Applicant produced any documentary evidence for the NDRB’s consideration, to support any contention that the Applicant warrants a n upgrade in characterization. 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 MISCONDUCT. 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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NAVY | DRB | 2010_Navy | ND1001116

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