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NAVY | DRB | 2011_Navy | ND1100233
Original file (ND1100233.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20101102
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)        20000629 - 20001205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200 0 1206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040915      Highest Rank/Rate: AOAN
Length of Service: Y ear( s ) M onth( s ) 10 D a y ( s )
 Education Level:        AFQT: 62
Evaluation M arks:         Performance: 2.8 ( 04 )     Behavior: 2.3 ( 4 )        OTA: 2.82

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20030924 :       For malingering-continued complaints for 22 months of left knee without medical, clinical, or radiologic findings or disability and with consistent normal exam s resulting in endless rounds of medical visits, and failure to remain in a Fit For Full Duty (FFFD) status. Failure to perform 2 consecutive Physical Readiness Tests (PRT) due to continued on/off Light Duty (LD) status and endless medical visits. Failure to remain within United States Navy (USN) maximum weight for height standards and failure to perform mandatory Physical Training .

Administrative Corrections to the Applicant’s DD 214

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

         NARRATIVE REASON FOR SEPARATION, should read: “ MISCONDUCT ”
        
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 :        


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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant seeks a discharge upgrade to improve employment opportunities.
3.       Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.
4.       Applicant contends her discharge was improper , stating she did not intentionally bounce checks.
Decision

Date: 20 1 2 0126             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 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 . T he Board complete d a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning for malingering , but did not reflect any commanding officer nonjudicial punishment (NJP) or trial by courts-martial. When notified of administrative separation processing using the procedure on 6 Jul 2004 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review. In her Commanding Officer’s endorsement of the Applicant’s administrative separation package, he stated: “Due to (the Applicant’s) inability and unwillingness to maintain a good financial status, she was administratively separated from the Naval service with a General (Under Honorable Conditions) characterization and a RE-4 reenlistment code. She has no potential for further Naval service . ” On 1 Sep 2004, the GCMA reviewed and approved the administrative separation of the Applicant as requested by her Commanding Officer. In the comments portion of the endorsement, he stated: “I have reviewed the enclosures (1)-(3) and completed a General Court-Martial Convening Authority Review of the subject member’s administrative separation. I find that the reason stated as a basis for separation is supported by a preponderance of the evidence. In accordance with reference (e), I am returning the case to you and directing appropriate action to separate the service member in accordance with references (a)-(c) . ” The Applicant was separated from the Navy on 15 Sep 2004 with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.
: (Nondecisional) The Applicant seeks a discharge upgrade to improve employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces. 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.

Issue 4: (Decisional) ( ) . The Applicant contends her discharge was improper , stating she did not intentionally bounce checks. Additionally, she provided copies of her bank statements to support her issue. The NDRB conducted a detailed review of the Applicant’s records to determine whether her discharge and the discharge process met the pertinent standards of equity and propriety . 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. Although substantial documentation of her misconduct was not found in the records, the NDRB noted several items that corroborated the narrative reason for h er discharge. In an Evaluation and Counseling report, dated 16 Jul 2002 - 15 Jul 2003 , the Reporting Senior state s “ …counseled on occasion about her demeanor and conduct on and off duty. (The Applicant) will be an asset to the command as she continues to mature and solidify her military bearing and personal character . ” The next Evaluation report, dated 16 Jul 2003 - 29 Feb 2004, states “Evaluation submitted to remove member’s advancement recommendation. (The Applicant’s) performance has degraded below standards and is not commensurate with what is expected from someone recommended for Third Class Petty Officer. Received numerous letters of indebtedness from Navy Exchange and civilian institutions for drafting checks against an account with insufficient funds to honor drafts. Received a Page 13 administrative warning/counseling from command’s Flight Surgeon for malingering. Failed to meet Navy’s physical readiness standards during the Fall 2003 PRT. (The Applicant) failed to live up to Navy Core Values of Honor, Courage, and Commitment. Her behavior was incompatible with the standards of conduct expected of Naval service members. Not recommended for advancement or retention . ” Her final Evaluation Report, dated 1 Mar - 15 Jul 2004 , states , “ (The Applicant’s) performance continued to be below standards. Financial irresponsibility surfaced again with a letter of delinquency from Y-COMM and two letters of delinquency from Consumer Adjustment Corporation ($876.54). Verbally counseled by a Master Chief Petty Officer for Uniform Regulation Violation while standing watch. Failed to report to PSD to discontinue BAH and BAS upon moving back into the barracks in February 2004, resulting in a debt to the U . S . Government equal to four months BAH. (The Applicant) failed to live up to the Navy Core Values of Hono r , Courage, and Commitment . Her behavior is incompatible with the standards of conduct expected of Naval service members. Not recommended for advancement or retention . ”

A fter analysis of all the available evidence, the NDRB , with no significant evidence submitted by the Applicant to rebut the presumption of regularity, found that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of her separation. When a service has been honest and faithful, it is appropriate to characterize that service as under Honorable conditions. A General (Under Honorable Conditions) discharge is warranted when a Sailor’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors, especially considering her grade and length of service , and f alls short of w hat is required for an upgrade to H onorable. Accordingly, the B oard determined this issue 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 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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 specific violation s of the UCMJ.



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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