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NAVY | DRB | 2010_Navy | ND1001479
Original file (ND1001479.rtf) Auto-classification: Denied

ex-ABEAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100526
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:         USMCR (DEP) 20010104 - 20010831         Active:  
         USNR (DEP)        20010926 - 20011119

Period of Service Under Review:
Date of Current Enlistment: 20011120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050413      Highest Rank/Rate: ABEAN
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 49 / 52
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 1.5 ( 4 )        OTA: 2.75

Awards and Decorations ( per DD 214):     

Periods of UA/ C ONF : UA: 20040727, 1 day , surrendered; 20040907, 1 day, surrendered
CONF: 20050125-20050308, 43 days

NJP :

- 20030129 :       Article (UA), 3 specifications
         Specification 1: 20021108-20021121, 13 days, surrendered
         Specification 2: 20021125-20021201, 7 days, surrendered
         Specification 3: NFIR
          Article (Missing movement)
         Awarded: Suspended:

- 20030911 :      Article (UA) , 2 specifications
         Specification 1: 20030628-20030629, 2 days , surrendered
         Specification 2: 20030823-20030826, 4 days , surrendered
         Awarded : Susp ended:

S CM :

SPCM:

- 20050309 :       Art icle (UA), 12 specifications
         Specification 1: 0630-0920, 20040909 , 2 hours 40 minutes
         Specification 2: 0630-0910, 20040915 , 2 hours, 20 minutes
         Specification 3: 20040923-20040927 , 4 days , surrendered
         Specification 4: 0630-0900, 20040928 , 2 hours 30 minutes
         Specification 5: 0700-0900, 20040929 , 2 hours
         Specification 6: 20040930-20041005 , 5 days , surrendered
         Specification 7: 0700-0830, 20041007 , 1 hour 30 minutes
         Specification 8: 20041008-20041012 , 4 days , surrendered
         Specification 9: 0700-0730, 20041013 , 30 minutes
         Specification 10: 20041018-20041020 , 2 days , surrendered
         Specification 11: 20041021-20041 2 10 , 5 0 days , surrendered
         Specification 12: 20041215-20050121 , 38 days , surrendered
         Article 134 (Breaking restriction)
          Sentence : for 89 days

C C :

Retention Warning Counseling :

- 20030129 :       For unauthorized absence and missing movement.

Administrative Corrections to the Applicant’s DD 214

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

         “ TL: 02 NOV 08-02 NOV 21; 02 NOV 25-02 DEC 01; 04 JUL 27; 0 4 SEP 07; 04 SEP 23-04 SEP 27; 04 SEP 30-04 OCT 05; 04 OCT 08-04 OCT 12; 04 OCT 18-04 OCT 20; 04 OCT 21-04 DEC 10; 04 DEC 15-05 JAN 21 ; 05JAN25-05MAR08 ”

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 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .


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. All the offenses that constituted the pattern of misconduct were subject of a special court-martial (SPCM).
2 . Misconduct was the direct result of discrimination and harassment aboard the USS THEODORE ROOSEVELT (CVN-71) .
3 . Subject of arbitrary and capricious actions by his chain of command.
 4 . Post-service conduct warrants consideration.
Decision

Date: 2010 1215    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’s record of service included one NAV PERS 1070/613 (Page 13) warning; two nonjudicial punishments for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence wi thout leave, 5 specifications: 1 specification not found in record, 13 days -surrendered , 7 days -surrendered , 2 days -surrendered , 4 days -surrendered ) , and Article 87 (Missing movement); and one SPCM for violations of the UCMJ: Article 86 ( Absence without leave, 12 specifications: 2 hours (hr) 40 minutes (min), 2 hr 20 min, 4 days-surrendered, 2 hr 30 min, 2 hr, 5 days-surrendered, 1 hr 30 min, 4 days-surrendered, 30 min, 3 days-surrendered; more than 30 days: 5 0 days-surrendered, 38 days-surrendered) , and Article 134 (Breaking restriction) . The Applicant also had two unadjudicated unauthorized absences of one day each , both surrendered. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .
Issue 1 : (Decisional) ( ) . The Applicant contends an upgrade is warranted because all the offenses that constituted the pattern of misconduct were sub ject of a SPCM , and he did not receive a punitive discharge, Naval Military Personnel Manual ( MILPERSMAN )1910-704.2(5) applies . MILPERSMAN 1910-704 refers to determining the separation authority. Paragraph 1910-704.2.b.(5) applies if “the sole basis for separation is a serious offense that resulted in a conviction by a special or general court-martial that did not impose a punitive discharge, and an Other Than Honorable discharge is recommended by an administrative board (or CO [commanding officer] when no board was held.)” The Applicant was notified for administrative separation processing for both misconduct due to a pattern of misconduct and commission of a serious offense, and subsequently separated due to a pattern of misconduct. The NDRB determined this issue is without merit. T he Applicant met the requirements for separation by reason of misconduct - pattern of misconduct as evidenced by his combination of two NJPs and one SPCM, and violation of his Page 13 counseling of 29 January 2003 . A pproval by the Secretary of the Navy wa s not required. After a thorough review of the records and supporting documentation, the NDRB discerned no impropriety in the discharge action.

 Issues 2-3 : (Decisional) ( ) . The Applicant contends his misconduct was the direct result of discrimination and harassment by peers and his chain of command, and he was the subject of arbitrary and capricious actions by his chain of command that purposely failed to counsel, admonish, punish or in any other way address the Applicant’s misconduct in a manner consistent with established military protocol. The Applicant provided several letters from former shipmates who discussed the harassment the Applicant received while assigned to the USS THEODORE ROOSEVELT . In the Summarized Record of Trial for the SPCM, the Applicant stated he did speak with a Catholic chaplain on several occasions but was told to hang in there and deal with it. The leading chief petty officer stated he had counseling sessions with the Applicant regard ing his unauthorized absences. From his statement with his DD Form 293, the Applicant’s counsel reported, “For his part, Applicant did not blame anyone for his unauthorized absences at his court-martial. He did not inform the judge that he had been assaulted by one of his supervisors, and he did not explain to the judge that he had been harassed incessantly once joining the USS Roosevelt. Applicant’s civilian defense counsel had assuredly informed Applicant that had he fully explained to the judge the type of harassment he had endured and that was tolerated as a result of coming to the USS Roosevelt from the Navy Seal Program, the defense of duress may have prevented the j udge from accepting his pleas. ” If the Applicant felt these issues were mitigating factors in his misconduct, it was his obligation to contest those charges during the SPCM or elect to have an administrative separation board. Although it appears t he Applicant was working in a hostile environment and the chain of command did not properly counsel him or provide relief for his situation, the Applicant did not utilize h is chain of command above his immediate supervisor or other resources on board the aircraft carrier regarding his harassment. Furthermore, the NDRB determined the Applicant’s two extended absences without leave (50 days and 38 days) constitute d a significant departure from the conduct expected of members of the Naval Service . While these issues provide some mitigation, they are not enough to overcome such gross misconduct and nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.

Issue 4 : (Decisional) ( ) . The Applicant contends he has spent the last five years of his life as a productive and contributing member of his community. The NDRB considers 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. The Applicant provided several letters of reference and documentation regarding his employment, education and training, health and medical records, criminal records, and community service. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, and the facts and circumstances unique to this case , the NDRB determined relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the characterization of service but not change the narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, discharge process, and testimony, the Board found the discharge was proper and equitable at the time of discharge. However, based on equity , the awarded c haracterization of service shall GENERAL (UNDER HONORABLE CONDITIONS and the narrative reason for separation shall remain .


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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