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NAVY | DRB | 2011_Navy | ND1100997
Original file (ND1100997.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20110308
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       UNCHARACTERIZED

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19990831 - 19990914     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990915     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030807      Highest Rank/Rate: FN
Length of Service: Y ear( s ) M onth( s ) 21 D a y ( s )
 Education Level:        AFQT: 47
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 1.66

Awards and Decorations ( per DD 214):     

Periods of UA : 20000823-20000824, 1 day; 20020212-20020306, 22 days; 20020506-20020507, 1 day; 20020908-20020918, 9 days

NJP :
- 20010330 :      Article (Unauthorized absence from appointed place of duty, to wit: #3 Sterntube 2300, on 20010130)
         Awarded: Suspended:

- 20010801 :      Article (Disrespect in language toward MM1 A_ by saying “F_ all you B_ ” )
         Article (False official statement , to wit: I do not know what happened because I did not pay attention to the assault )
          Article (Assault FA C_, by striking him in the face with a closed fist and kneeing him in the face )
         Article (Communicate a threat to MM1 A_, to wit: I will kill you m_ f_ on 20010708)
         Awarded : Susp ended:

- 20011019 :      Article (Failed to obey an order issued by the Commanding Officer, to wit: Not to visit Tijuana, Mexico without express written permission on 20010923)
         Awarded : Susp ended:

S CM :
- 20020324 :       Art icle (Unauthorized absence, 8 specifications )
         Specification 1: Fail to go to 3MMR onboard USS Constellation 0530, 20020122
          Specification 2: From 3MMR onboard USS Constellation 2100, 20020122
         Specification 3: Fail to go to 3MMR onboard USS Constellation 1730, 20020123
         Specification 4: From 3MMR onboard USS Constellation 0230, 20020127
         Specification 5: From 3MMR onboard USS Constellation 0230, 20020128
         Specification 6: From unit 20020212 until 20020222, 10 days
         Specification 7: Fail to go to pre-trial restricted muster on 20020308
         Specification 8: Fail to go to pre-trial restricted muster on 20020312
          Article 87: Miss ed movement through design on 200202 2 5
         Sentence :

- 20030305 :       Art icle ( Absent without leave, 3 specifications )
         Specification 1: 20021010 to 20030109, 91 days
         Specification 2: 0700 to 1105, 20030126
         Specification 3: 2130, 20030126 to 0510, 20030127
          Sentence : CONF 25 days

SPCM:    C C :

Retention Warning Counseling :

- 20010330 :       For unauthorized absence from appointed place of duty, to wit: #3 Sterntube at 2300, 20010130

- 20011031 :       For failing to obey an order issued by the Commanding Officer, to wit: Not to visit Tijuana, Mexico without written permission which resulted in Commanding Officer’s NJP held on 20010131.

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ARMED FORCES EXPEDITIONARY MEDAL ”
         “ PATTERN OF MISCONDUCT ”
         “ 02FEB12-02MAR06; 02MAY06-02MAY07; 02SEP08-02SEP18; 02OCT10-03JAN09 ”
        
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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 .



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

Applicant’s Issues

 1.        The Applicant desires to re-e nlist in the military.
2.       The Applicant contends he was not offered rehabilitation to try to save himself from his youth and immaturity.
Decision

Date : 2012 0517             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( , ), Article (Insubordinate conduct, ), Article ( , ), Article (False official statement, ), Article ( , ), and Article ( Article , : Communicate a threat ) , and for of the UCMJ: Article ( Unauthorized absence, 11 specifications ). Based on the , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and request an administrative board. The Applicant waived his right to submit a written statement. By a vote of 3-0 , the administrative board recommended separation with an Under Other Than Honorable Conditions characterization of service. The S eparation A uthority approved the board’s recommendation, and the Applicant was separated with an Under Other Than Honorable Conditions characterization of service.

: (Nondecisional) The Applicant desires to re-enlist in the military. 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 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was not offered rehabilitation to try to save himself from his youth and immaturity. Over the Applicant’s 3 ½ years of service, he committed numerous violations of serious offenses and was appropriately punished and counseled at three NJPs, two summary courts-martial, and via two Page 13 retention warnings. The Applicant had multiple opportunities to correct his poor behavior, yet repeatedly engaged in serious misconduct, to include being UA for greater than 30 days, disrespect, assault, communicating a threat, and missing ship’s movement. The Applicant is fortunate he was not sent to a special court-martial where he could have received a Bad Conduct Discharge. The NDRB discerned no impropriety or inequity in the Applicant’s discharge. 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 d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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.


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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