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NAVY | DRB | 2011_Navy | ND1100866
Original file (ND1100866.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20110217
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)        19970910 - 19971216     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19971217     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000913      Highest Rank/Rate: AOAN
Length of Service: Y ear( s ) M onth( s ) 27 D a y ( s )
 Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 2.4 ( 5 )        OTA: 2.82

Awards and Decorations ( per DD 214):      NONE

Period of C ONF :

NJP :

- 20000808 :      Article (Absence without leave , UA ), 2 specifications
         Specification 1: 20000606 f rom a doctor appointment prolonging his recovery to fit for full duty status
         Specification 2: 20000714 from command PRT
         Article 115 (Malingering)
         Awarded: Suspended:

S CM :             SPCM:             C C :      Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20071220
NDRB Documentary Review Docket Number:   ND07-00832
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MILPERSMAN 1910-142 ”
         “ 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 :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, effective 30 August 2000 until
24 January 2001, 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 115 .



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

Applicant’s Issues

 1.       Applicant contends a physical injury , incurred while in boot camp , mitigates the misconduct for which he was separated.
2.       Applicant contends his discharge was inequitable based on the circumstances surrounding his separation from service.
3.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 0516                      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 three decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did reflect nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: UA from missed doctor ’s appointment , therefore prolonging his recovery to fit for duty status, 6 June 2000; UA from command PRT, 14 July 2000) and Article 115 ( Malingering , 16 February 1999-25 July 2000 ). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure on 25 July 2000 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 11 Aug 2000, the Applicant’s Commanding Officer endorsed his administrative separation package stating , “(The Applicant) has demonstrated a consistent inability to adhere to the Navy’s policies and regulations. He arrived at VS-41 on 4 November 2008 in a LIMDU status. We have tried unsuccessfully to get (the Applicant) fit for full duty so that he could return to Sea Duty. Several times he has not been able to execute official duty orders because something ‘ new ’ occurred each time orders were issued by his detailer. During individual psychotherapy sessions (the Applicant) admits that he ‘ just wants out of the Navy. ’ Furthermore, recently doctors have established that his knee is perfectly healthy. He went to doctors complaining of knee pain, through x-rays and performing a knee scope, they have determined that he is in excellent health.” On 31 August 2000, the Separation Authority directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged from the Navy on 13 September 2000 as directed.

: (Decisional) ( ) . The Applicant contends a physical injury , incurred while in boot camp , mitigates the misconduct for which he was separated. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. The Applicant’s record clearly indicates he sustained an injury to his knee while undergoing recruit training. After an extended period of light duty and recuperation , the Applicant was found fit for duty. However, due to ongoing complaints of knee pain, the Applicant could not execute subsequently issued operational sea duty orders he received from the Bureau of Naval Personnel. Based on the Applicant’s lengthy limited duty status and inability to serve in the operating forces , he was referred for a medical board to determine his fitness for full duty potential . On 24 May 2000, t he Medical Board, after analysis of the Applicant’s medical records, found him fit for full duty. The Applicant was reported UA from a doctor ’s appointment on 6 June and a command P hysical R eadiness T est on 14 July , which resulted in him being charged with violations of UCMJ Articles 86 (UA) and 115 (Malingering) and then referr al to Captain’s Mast (NJP). The NDRB, after detailed review and analysis, found no evidence to demonstrate that th e Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Accordingly, the NDRB found that the Applicant’s discharge was proper based on the service and medical record ev idence available to the Board. Relief denied.


: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on the circumstances surrounding his separation from service. The NDRB conducted a thorough review of the Applicant’s service and medical records to determine whether his discharge met the pertinent standard for equity. After detailed analysis and careful consideration of the documentary evidence within the records, the testimonial evidence provided at the pe rsonal appearance hearing , and the particular circumstances unique to the Applicant’s case, the NDRB found that his discharge was inequitable. Accordingly, the Board determined that the Applicant’s issue warranted partial relief based on the grounds of equity. Therefore, pursuant to the applicable orders and directives in effect at the time of his separation, the Applicant’s discharge shall be upgraded to General (Under Honorable Conditions). Full relief to Honorable was not granted, because the NDRB determined that misconduct did occur of such a nature as to warrant a General (Under Honorable Conditions) characterization of service. Partial r elief warranted.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided personal statements, character witness testimony, and a physician’s letter as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant ’ s DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . C ompletion of these items alone , however, does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined th e Applicant’s 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 summary of service and record entries, the administrative separation process, and the documentary and testimonial evidence provided during the personal appearance hearing, the Board found Therefore, the awarded characterization of service shall , but the narrative reason for separation shall remain . The Applicant is no longer eligible for relief from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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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