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NAVY | DRB | 2011_Navy | ND1100156
Original file (ND1100156.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20101026
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)        20061216 - 20070610     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070611     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090911      Highest Rank/Rate: FN
Length of Service: Y ear( s ) M onth( s ) 1 D a y ( s )
 Education Level:        AFQT: 52
Evaluation M arks:         Performance: 2.7 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 2.78

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20090721 :      Article (Absence without leave, 8 specifications )
                  Specification 1: UA 0730 , 20090508 - 1400 20090509 ( 1 day )
                  Spe cification 2: UA 1530, 20090512 - 0730 , 20090515 ( 3 days )
                  Spe cification 3: UA 0700, 20090527 - 2013 , 20090528 ( 1 day )
                  Spe cification 4: UA 0700, 20090630 - 0700 , 20090701 ( 1 day )
                  Spe cification 5: UA 0700, 20090706 - 0724 , 20090708 ( 2 days )
                  Specification 6: o / o 20090212, 20090604, 20090611, 20090615, 20090616, 20090617, and 20090717 failed to go at the time prescribed to his appointed place of duty
                  Specification 7: o /o 20090525 - 20090529 failed to go to his appointed place of duty
                   Specification 8: UA 0730 , 20090717 - 1000 , 20090720 ( 3 days )
         Article (Contempt or disrespect toward warrant, noncommissioned, or petty officer, 2 specifications )
                  Specification 1: D isrespectful in language and deportment toward a Police Sgt , 20090526
                  Specification 2: D isrespectful in language and deportment toward OS2 , 20090527
         Article (Failure to obey la wful order, driving on base with suspended license, 2009319 - 20090525 )
         Article (False official statement , regarding driver’s license suspension to BM1, 20090526 )
         Article (False or unauthorized pass offenses , vehicle decal, 20090528 )
         Awarded: (to E-2) Suspended: (suspend 6 months)

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20070709 :       For inappropriate behavior and unprofessional conduct in wrongfully using racially explicit language while in a trainee status .
- 20080218 :       For diagnosis of sprain cruciate ligament posterior, knee sprain medial collateral ligament and knee sprain cruciate ligament .

Administrative Corrections to the Applicant’s DD 214

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

         “ (1) 09M AY 08 TO 09M AY 09 , (3) 09M AY 12 TO 09M AY1 5, (1) 09M AY 27 TO 09M AY 28, (1) 09J UN 30 TO 09J UL 01, (2) 09 JUL 06 TO 09J UL 08 , (3) 09J UL 17 TO 09JUL 20 ”

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 23, effective 12 June 2008 until 9 November 2009, 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 s 91, 92, 107 , and 134 .


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

Applicant’s Issues

 1.        Applicant contends his discharge was inequitable, because it was based on an isolated incident in 27 months of otherwise honorable service.

Decision

Date: 20 1 2 01 26             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 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 Applicant identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 8 specifications ), Article 91 ( Insubordinate conduct toward noncommissioned officer or petty officer, 2 specifications ), Article 92 ( Failure to obey an order or regulation, driving on base with a suspended license, on diverse occasions between 2009319-20090525 ) , Article 107 ( False official statement , regarding driver’s license suspension to BM1, 20090526 ) , and Article 134 (False or unauthorized pass , vehicle decal, 20090528 ) . Based on the repeated and serious nature of the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure on 21 Jul 2009 , the Applicant exercised rights to consult with a qualified counsel and request a General Court-Martial Convening Authority r eview. He elected not to submit a written statement. In his endorsement of the Applicant’s administrative separation package, the Commander, Naval Air Station Oceana VA state d, “(The Applicant) has only been with this command since Mar 2009 on limited duty. (The Applicant), as evidenced by t h e charges and disposition on 21 Jul 2009, does not come to work, ha s lied, been disrespectful to his Leading Petty Officer and law enforcement officials, driven on base while his license was suspended , and obtained base decals fraudulently. (The Applicant) has shown no integrity or desire to conform to basic Navy standards. The member did not attend his follow-up medical appointments after having kne e surgery. All of his charges except the absences without leave qualify as serious offenses. Even while pending NJP , he was again absent without leave. (The Applicant) has been given every opportunity to succeed in the Navy but refuses to even attempt to meet the most basic requirements. This member is a burden on the command and the Navy and is not a Sailor we want o r need in the Navy . ” On 18 Aug 2009, the Separation Authority directed that the Applicant be separated from the Navy as requested by the chain of command. The Applicant was separated from the Navy on 11 Sep 2009 with a General (Under Honorable Conditions) discharge due to Misconduct ( Commission of a Serious Offense).
: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because it was based on an isolated incident in 27 months of otherwise honorable service. Despite a service member’s prior record of se rvice, certain serious offenses warrant separation from the N aval S ervice in order to maintain proper order and discipline. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A General (Under Honorable Conditions) d ischarge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service included multiple violations of UCMJ Articles 91, 92, 107, and 134 , which constitute the “commission of a serious offense . ” Th ese specific violation s are punishable by a B ad C onduct or D ishonorable D ischarge and up to 5 years of imprisonment if adjudicated at trial by court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially one of his grade and length of service and f alls far short of w hat is required for an upgrade in the characterization of service. Moreover, i n his final Evaluation and Counseling Report (dated 11 Mar-15 Jul 2009), the Reporting Senior makes the following comments: “(The Applicant) is a Sailor who requires supervision to complete any tasks. His performance has been marred by numerous documented instances of tardiness and poor judgment exercised in his personal conduct, demonstrated both aboard and ashore. He lacks initiative to learn and perform specific daily duties as a Passenger Service Representative. Failed to live up to the Navy Core Values. (The Applicant’s) performance has been unsatisfactory as a Passenger Service Representative. He has not reached required expectations. He is not recommended for advancement nor retention . ” After careful consideration of all the available evidence, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. 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 administrative separation p rocess, the Bo ard 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 his discharge. The Applicant is directed to the Addendum for additional information.


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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