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NAVY | DRB | 2010_Navy | ND1001187
Original file (ND1001187.rtf) Auto-classification: Denied

ex-MMFR, USN
Current Discharge and Applicant’s Request
Application Received: 20100113
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)        20000112 - 20000119     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020319      Highest Rank/Rate: MMFA
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.00

Awards and Decorations ( per DD 214): , ,

Periods of UA : 20010614 - 20010619 (4 days); 20010201 - 2001022 4 (23 days)

Periods of CONF:

NJP :

- 20010614 :      Article (UA)
         Awarded: Suspended: [ Suspension vacated 20010629 ]

- 20010629 :      Article (UA)
         Article (Failure to obey order)
         Article 107 (False official statement)
          Awarded: Suspended:

- 200203 0 4 :      Article (UA), 2 specifications
         Article (Missing movement)
         Article 92 (Failure to obey order), 3 specifications
          Awarded: CCU Suspended:

- 20020314 :      Article (Failure to obey order)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20010618 :       For absen ce without leave.



Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ 01JUN14 TO 01JUN18; 01FEB01 TO 01 FEB 24 ”

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 22, effective 15 December 1998 until 21 August 2002,
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 a change in characterization of service at discharge to General (Under Honorable Conditions) in order to facilitate employment opportunities.

2.       Decisional issues: The Applicant contends that he was young and immature at the time of his service and was unable to handle his responsibilities while also dealing with the stress and pressure of divorce.

Decision

Date: 20 1 1 0526            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 Board 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 identified one decisional issue for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discha rge met the pertinent standards of equity and propriety.

 The Applicant’s service record documents one NAVPERS 1070/613 retention-counseling warning regarding his unauthorized absence and advising the A pplicant that any further misconduct could result in punitive disciplinary action or administrative separation. Additionally, the service record documents four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically :
•         A rticle 86 (Absence without leave) , 4 specifications to include periods of absenting himself from his unit without authority for a period of 4 days and 23 days
•         Article 87 (Missing movement)
•         Article 92 (Failure to obey order or regulations ) , 5 specification s
•         Article 1 07 (False official statements).
The Applicant was discharged from the Naval Service due to Misconduct, specifically, having established a P attern of M isconduct as defined by Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN). The Separation Authority reviewed the Command’s recommendation for separation; determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 29 March 2002, the App licant was discharged and receive d an RE-4 reenlistment code (not recommended for reenlistment). The NDRB review ed the Applicant’s discharge package to ensure he was afforded all of his administrative rights pursuant to the separation process . O n 18 March 2002, the Applicant acknowledged his understanding that he was being recommended for separation for a Pattern of Misconduct. He further acknowledged understanding that the least favorable characterization of service warranted was Under Other Than Honorable Conditions and that was what the command was recommending . The Applicant elected to waive his right to consult with qualified legal counsel, to request an administrative discharge hearing board, and to submit a statement to the Sepa ration Authority.

: (Nondecisional). The Applicant seeks a change in characterization of service at discharge to Honorable in order to facilitate employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities. As such, this issue does not serve to provide a foundation upon which the Boa rd can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or for seeking Veterans Affairs benefits. 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 characterization of service at discharge warrants a change from Under Other Than Honorable Conditions to General (Under Honorable Conditions) as he is now a wiser and more responsible person. The Applicant contends that he was young and immature at the time of his service and was unable to handle his responsibilities while also dealing with the stress and pressure of divorce .

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In accordance with the MILPERSMAN, a service member may be discharged , involuntarily , when their conduct or performance of duties meets one of the established reasons for separation. Based upon available records, nothing indicates that the Applicant’s discharge was in any way in consistent with the standards of discipline in the United States Navy. A review of the Applicant ’s service record indicates that he met all the requirements for involuntary separation for a P attern of M isconduct as demonstrated by his four nonjudicial punishments and his violation of the retention counseling warning he received on 18 June 2001. Although his discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge. As such, the NDRB determined that the characterization of service at discharge and narrative reason for separation were proper, appropriate, and consistent with the discharge given others in similar circumstances. The NDRB determined that an upgrade or change based on issues of propriety would be inappropriate; accordingly, relief is denied.

The Applicant contends his disciplinary problems were the result of stress caused by an ongoing divorce. The Applicant contends the characterization of his discharge should be upgraded because he did not know how to deal with the stress of the divorce. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Applicant’s documented misconduct does not present as an isolated period of misconduct but spans over almost a year-long period of time. As such, t he NDRB determined the Applicant’s personal problems were not a mitigating factor to his overall record of m isconduct .

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 of duties outweigh the positive aspects of the member’s military record.
However, a discharge Under Other Than Honorable Conditions 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 record of performance and conduct reflect s a well - documented pattern of misconduct with willful violations of the UCMJ , to include providing false official statements to his leadership and absenting himself from his unit , without authority , for a period of 23 days , resulting in missing his ship ’ s movement .

After reviewing the Applicant’s official service record and supporting documentation, 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 NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate; accordingly, relief is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the Applicant’s submitted documentation, and the discharge process, the Board found that the discharge was proper, equitable, and not prejudicial to the Applicant. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF 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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