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NAVY | DRB | 2010_Navy | ND1001891
Original file (ND1001891.rtf) Auto-classification: Denied

ex-AMSAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100727
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)        19941122 - 19950606     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19950607     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990702      Highest Rank/Rate: AMS3
Length of Service : Y ear s M onth s 09 D a ys
Education Level:        AFQT: 68
Evaluation M arks:         Performance: NFIR        Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NDSM SSDR (2) AFEM (2) AFSM NUC

Period of UA : 19981008 - 19981024 ( 17 days )

NJP : 2

- 19971212:      Article 128 (Assault , 19971128 )
         Awarded: RIR FOP RESTR Suspended: RIR (suspend 6 months)

- 19981117 :      Article 112a (Wrongful use of controlled substance )
         Awarded: RIR (to E-3) FOP RESTR Suspended:

S CM : NONE       SPCM:    C C :

Retention Warning Counseling : 2

- 19970606 :       For disobeying direct orders and blatant disrespect toward First and Second Class P etty O fficers appointed over you.

- 19971212:      For deficiencies and disciplinary problems.

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 :        


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

Applicant’s Issues

 1.        Applicant seeks a reenlistment code change from RE-4 to RE-1.
2.       Appl icant contends his discharge was inequitable as he completed his obligated service honorabl y .

Decision

Date : 20 1 1 11 29             Location: Washington D.C .        R epresentation : NONE    

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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The B oard c omplete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warning s for disobeying orders and blatant disrespect toward First and Second Class Petty Officers ap pointed over him (6 Jun 1997) and deficiencies and disciplinary problems (12 Dec 1997). The record also reflected two for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use , possession, etc of a controlled substance) and Article 128 (Assault , 28 Nov 1997 ). T he Applicant had pre-service waiver s for four minor misdemeanors and one petty theft misdemeanor prior to entering the Navy. Although the Applicant could have been processed for administrative separation on the basis of his misconduct (Assault and Illegal drug use), he was allowed to reach the end of his active obligated service (EAOS). He was discharged from the Navy on 2 Jul 1999 with a General (Under Honorable Conditions) characterization of service.

: ( Nondecisional) The Applicant seeks a reenlistment code change from RE-4 to RE-1. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable as he completed his obligated service honorably. Although a review of the Applicant’s service record s reveal ed no evaluation and counseling report markings ( to include an overall trait average ) , it does reflect that the Applicant’s performance and conduct were below the expected standard as evidenced by his violation s of UCMJ Article 112a ( I llegal drug use/drug abuse) and Article 128 ( A ssault) and retention warnings for disobeying direct orders, blatant disrespect of noncommissioned officers appointed over him, and deficiencies and disciplinary problems. Violation of UCMJ Articles 112a and 128 are considered serious offenses and punishable by up to two years confinement and a B ad C onduct D ischarge if adjudicated at trial by court-martial. In conducting a review of the records, the Board could not determine whether the Applicant had been processed for discharge due to violation of Article 112a . Nonetheless, the Applicant was allowed to reach his EAOS. Per the Naval Military Personnel Manual, a Sailor may be awarded a General ( Under Honorable Conditions ) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Moreover, u pon separation, if a member’s overall trait average is below 2.49, they can be awarded a General ( Under Honorable Conditions ) discharge. Since the Applicant’s four- year enlistment evaluation and counseling m ark ing averages were not found in the record, the Board presumed regularity in government affairs and determined that the discharge characterization awarded was equitable based on the significant misconduct reflected within the record. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the expected standards of conduct, especially considering his previous grade and length of service, and falls short of what is required for an Honorable upgrade to his characterization of service. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the completion of required service d ischarge p rocess, 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 for additional information.

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 18 effective 12 December 1997 until 26 March 2000, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 .


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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