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NAVY | DRB | 2010_Navy | ND1001121

Original file (ND1001121.rtf) Auto-classification: Denied

ex-AMEAN, 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)        20030122 - 20030909     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030910     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060720      Highest Rank/Rate: AMEAN
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 58
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.0 ( 2 )        OTA: 2.77

Awards and Decorations ( per DD 214):

Period of C ONF :

NJP :

- 20040818 :       Article 81 (Conspiracy)
         Article (False official statement)
         Article 111 (Reckless operation of a vehicle)
         Awarded : Susp ended:

- 20041005 :       Article (Unauthorized absence - 4 separate specifications )
         Article (Failure to obey order and regulation)
         Awarded : Susp ended:

S CM :    SPCM:

C C :

- 20051011 :       Offense: Exceeding 100 mph; Failure/Evidence of financial responsibilies; Possession of license; Violation of promise to appear.
         Sentence : VC-22348B - $1,350.00 fine; VC-16028A - $700.00 fine; VC-12951A - $70.00 fine; and VC- 40508 (A) - $175.00 fine, restitution and fine pursuant to 1202.4(B) PC, in the amount of $100.00, court security fee of $80.00 is assessed, administrative assessment fee of $10.00 ordered pursuant to vehicle code 40508.6. Fees are to be paid prior to any other fine amounts of $2,295.00 plus time payment fee in the amount of $35.00. Total fines and/or fees due payable in the amount of $2,530.00, payable at $50.00 per month, commencing on 10 May 2006. The defendant’s driver’s license or privileges to drive in state suspended for 20 days.

Retention Warning Counseling :

- 20041012 :       For violation of A rticle 86 (Absent without leave); A rticle 92 (Failure to obey order or regulation), 4 specifications. On or about 20040829, you were reported for wrongfully failing to go to your appointed place of duty by not showing up for the Quarterdeck watch. On or about 20040820 and 20040824, you received an unsatisfactory during a room inspection while in restricted status ; on or about 20040829 you wrongfully possessed a cell phone while in restricted status. On or about 20040829, you were reported for having an unsatisfactory uniform during morning Command Master-At-Arms Inspection by not shaving and by wearing the improper rank insignia.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT (SERIOUS OFFENSE) ”

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 11, effective 26 April 2005 until 11 June 2008, 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 9 2 , Article 1 07 , and Article 11 1 .

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

Applicant’s Issues

Decisional issues: The Applicant did not identify any issues regarding the propriety or equity of his discharge.

Decision

Date: 20 1 1 05 05 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 issues 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 did not provide any additional documentary evidence for the NDRB’s consideration.

The Applicant’s record of service includes documentation of one NAVPERS 1070/613 retention-counseling warning regarding his absence without leave and his failure to obey orders. The Applicant’s enlistment also contained two nonjudicial punishments for violations of the Uniform C ode of Military Justice (UCMJ) , specifically, violation of Article 81 ( C onspiracy), Article 86 ( A bsent without leave), Article 92 ( F ailure to obey orders or regulations), Article 107 ( F alse official statement), and Article 111 (Drunken d riving). Additionally, the Applicant’s period of service also includes a civilian criminal conviction for excessive speed, failure of financial responsibilities, failure to possess a license, and failur e to appear in civilian court.

The NDRB applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package. The NDRB was not able to determine if the Applicant elected to consult with qualified legal counsel or elected to submit a statement to the Separation Authority. However, the Separation Authority and his Staff Judge Advocate reviewed the separation recommendation and concurred with the recommendation for separation as submitted by the Command ing Officer. Additionally, the Staff J udge Advocate review found that the separation package met the legal requirements for discharge.

The Applicant ’s Commanding Officer submitted his recommendation for administrative separation on 19 May 2006 after advising the Applicant of the proposed basis for separation and that the least favorable characterization of service he could receive was General (Under Honorable Conditions). Based on the assigned separation code on the Applicant’s DD Form 214 (JKQ), the Applicant was advised that the least favorable characterization of service he could receive at discharge was a General (Under Honora ble Conditions) and that the Applicant’s proposed separation process did not warrant the right to elect an administrative hearing board. On 09 June 2006 , the Separation Authority approved the recommendation for discharge , directing that the basis for separation be MISCONDUCT (Serious Offense) - having determined that the evidence of record supported the basis for discharge - and that the characterization of service as recommended by the chain of command was warranted. On 20 July 2006 , the Applicant was discharged from the service w ith a General (Under Honorable C onditions) characterization of his service .

( NDRB Review ) ( ) . The Applicant contends that his discharge warrants consideration for an upgrade in the characterization of his service at discharge to Honorable , but did not provide any specific issues regarding propriety or equity for the NDRB’s consideration . 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 or civilian 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 military offense. The Applicant’s service record formally documents a determination of guilt for violation of Article s 92, 107, and 111 of the UCMJ at a nonjudicial punishment (Captain’s Mast) held on 18 August and 05 October 2004 . In accordance with the Manual for Courts-Martial, violation of these a rticle s of the UCMJ warrant punitive discharge and confinement for up to 5 years , if adjudicated at trial by court-martial; thus, the violation s meet the requirement of the MILPERSMAN for administrative separation due to the commission of a serious offense. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation. 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.

Based on the seriousness of the offense committed, coupled with the Applicant’s personal misconduct in the civilian community and the resultant conviction , the Command recommended separation with a General (Under Honorable Conditions) characterization of service at discharge. 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 Applicant’s record of service , the NDRB determined the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct and performance of duties as outlined in the preceding paragraphs did outweigh the positive aspects of his service record. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in t he characterization of the A pplicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade is not appropriate .

NOTE: 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.

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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NAVY | DRB | 2010_Navy | ND1001121

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