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NAVY | DRB | 2011_Navy | ND1100195

Original file (ND1100195.rtf) Auto-classification: Denied

CORRECTED DOCUMENT
ex-ETSN, USN

_{CURRENT DISCHARGE AND APPLICANT'S REQUEST} Docket No.NDll-00195

Application Received: 20I0I 029
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge:(per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant's Request: Characterization change to: HONORABLE Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USNR (DEP) 20050729 - 20060313 COG _{Active: NONE}

Period of Service Under Review: Date of Current Enlistment: 20060314
Period of Enlistment: 4 Years 24 MONTHS Extension
Date of Discharge: 20090908
Length of Service: 03 Years 05 Months 26 Days
Education Level: 12

Age at Enlistment: 17 (PARENTAL CONSENT) Highest Rank/Rate: ET3
_{AFQT: 88}

Evaluation Marks: Performance: 3.7 (3)
_{Behavior: 3.0 (3)
OTA: 3.66}
Awards and Decorations (per DD 214): NDSM GWOTSM SSDR GWOTEM NAVY "E" Periods ofUA/CONF: NONE
SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NONE

NJP: I

-20090701: Article 86 (Absence without leave, UA, 20090603-20090608, 5 days)
Article 115 (Malingering, absent himself for the purpose of avoiding an Individual Augmentee billet)
Awarded: RIR FOP RESTR EPD Suspended: NONE

ADMINISTRATIVE CORRECIIONS TO TilE APPLICANT'S DD 214

The NDRB did note administrative errors on the original DD Form 214:

Block 18, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or authorized, should read:
''NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY "E" RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, ENLISTED SURFACE WARFARE SPECIALIST'
Block 29, Dates of Time Lost During This Period, should read : ''20090603 - 20090608 (5)"

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

_{CORRECTED DOCUMENT}

Key: NFIR - Not found in record SPCM ·Special court-martial CONF - Confinement
UA -Unauthorized absence
FOP- Forfeiture of pay
CC -Civilian conviction
NJP -Nonjudicial punishment
RIR -Reduction in rank
CCU - Correctional Custody Unit
SCM • Sununary court-martial
EPD- Extra duties
BW- Confinement on bread and water

Docket No. NDll-00195

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:
^{DD 214: Service/Medical Record: ^{Other Records: D}

_{Related to Post-Service Period:}^{Employment: _{D ^{Finances: _{D Education/Training: _{D ^{Health/Medical Records: _{D ^{Rehabilitation/Treatment: _{D Criminal Records: _{D ^{Personal Documentation: _{D Community Service: _{D References: _{D Department of VA letter: _{D Other Documentation: _D}}}}}}}}}}}}}}
Additional Statements:

^{From Applicant: D ^{From/To Representation: D ^{From/To Congress member: _D}}
^{PERTINENT REGULATION/LAW}

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until9 November 2009, Article

1910-142, SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B. Secretary ofthe Navy Instruction 5420.174D of22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularitv of Government Affairs, Part V, Para 502, Proprietv and Para 503, !lgyjjy.

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part ofthe sentence upon conviction by a special or general conrt-martial for violation of the UCMJ, Article 115.

Key: NFIR -Not found in record SPCM- Special court-martial CONF - Confinement

UA - Unauthorized absence

FOP - Forfeiture of pay

CC - Civilian conviction

NJP- Nonjudicial punishment

RIR - Reduction in rank

CCU -Correctional Custody Unit

SCM- Summary court-martial

EPD - Extra duties

BW- Confinement on bread and water

_{Docket No. NDll-00195

DEPARTMENT OF THE NAVY

NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT

APPLICANT'S ISSUES}}}}
1. The Applicant contends his misconduct was an isolated incident.
2. The Applicant believes the charge for malingering was improper, because he did not feign illness or harm himself to avoid
service.

DECISION
^{Date: 20120124
DOCUMENTARY REVIEW}Location: WASHINGTON D.C. Representation: NONE By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (SERIOUS OFFENSE).

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 goverrunental 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 nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, I specification: 5 days) and Article 115 (Malingering, I specification). Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant's administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel or submit a written statement. The Applicant's separation code (HKQ) indicates he waived his right to request an administrative board.

Issue I: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his misconduct was an isolated incident. Despite a service member's prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 115 is one such offense warranting administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violation of Article 115 at NJP. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.
The NDRB determined an upgrade would be inappropriate. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant believes the charge for malingering was improper, because he did not feign illness or harm himself to avoid service. Other than his own statement, the Applicant provided no documentation or credible evidence in support of his issue or to overcome the NDRB's presumption of regularity in the conduct of governmental affairs. The record did not contain specific details regarding the circumstances of the Applicant's malingering charge, however, he was convicted of the charge at NJP. The NDRB found no inequity or impropriety with the NJP and has no authority to overturn the CO's decision. In the absence of substantial and compelling evidence, the NDRB determined an upgrade for this issue would be inappropriate. Relief denied.

Summary: After a thorough review ofthe available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).

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. specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

_{Docket No. NDII-00195

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 HYPERLINK http://Boards.law.af.mil/ "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. Deparbnent ofVeterans 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 oftime 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 accomplislnnents 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 disGharge 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 | 2011_Navy | ND1100195

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