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NAVY | DRB | 2011_Navy | ND1101023
Original file (ND1101023.rtf) Auto-classification: Denied

ex-FTSR, USN
Current Discharge and Applicant’s Request
Application Received: 20110315
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)        20011114 - 20020529     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020530     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060529      Highest Rank/Rate: FTSN
Length of Service: Y ear( s ) M onth( s ) 00 D a y ( s )
 Education Level:        AFQT: 70
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.17

Awards and Decorations ( per DD 214):      Rifle Pistol ESWS NEM

Periods of UA /C ONF :

NJP :

- 20040730 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Assault)
         Awarded: ORAL Suspended:

- 20041111 :      Article (Assault upon a warrant, noncommissioned, or petty officer)
         Awarded: Suspended:

- 20051013 :      Article (Assault upon a warrant, noncommissioned, or petty officer)
         Awarded : Susp ended: Suspension vacated 20060117

- 20060125 :      Article (Failure to obey order or regulation - dereliction of duty)
         Article (False official statement)
         Awarded: Suspended: [Extracted from Commanding Officer’s letter dated 20060502.]

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20041111 :       For assault consummated by battery and assault upon a warrant, noncommissioned, or petty officer. You displayed a general contempt and disrespect toward authority and the U.S. Na v y, as demonstrated by repeated examples of disobedience and defiance. You do not conduct yourself in a manner that is in keeping with the standards of good order and discipline. You have been frequently combative and belligerent toward other crew members.



NDRB Documentary Review Conducted (date):        20071011
NDRB Documentary Review Docket Number:   ND07-00336
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
B . Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 C. 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.
D. 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 UCMJ Article s , 107, and .



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

Applicant’s Issues

1 .       The Applicant contends he experienced anger management problems which mitigate his misconduct.
2 .       Post-service conduct .
Decision

Date : 2012 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 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’s record of service included NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( , ), Article ( , ), Article ( , ), and Article ( , ). Based on the offenses committed by the Applicant, 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. This recommendation was approved by the separation authority, and the Applicant was subsequently separated with an Under Other Than Honorable Conditions characterization of service.

: (Decisional) ( ) PARTIAL . The Applicant contends he experienced anger management problems , which mitigate his misconduct. The record shows the Applicant had a history of anger management problems in the military and attended anger management classes on two separate occasions during his enlistment. After carefully considering the record, sworn testimony, and documentation provided by the Applicant, the NDRB found he had a history of handling confrontation in an inappropriate manner. While growing up, the Applicant had experienced significant losses of his parents and grandparents who were raising him. The unique circumstances resulting from this fractured childhood led to a history of fighting and immature attitudes that he carried into the Navy. Despite being a capable sailor, the Applicant experienced several incidents in which his inability to appropriately handle confrontation ended in physical altercations and NJP. Given the unique circumstances of this case, the NDRB determined the Applicant’s immaturity and inability to appropriately deal with anger mitigates his misconduct. The Applicant still bears responsibility for his misconduct, so full relief to Honorable is not warranted. When viewed in concert with his post-service conduct, addressed in I ssue two, the NDRB determined an upgrade to General (Under Honorable Conditions) is warranted in this case with no change to the narr ative reason for separation. Partial relief warranted.

: (Decisional) ( ) PARTIAL . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review. The Applicant submitted substantial documentation in support of his request including: proof of earning two Associates degrees, training and employment as a personal trainer, training, certification, and steady employment as an information systems technician with a background investigation, training and certification as an electronics technician, and a marriage license. The NDRB found the Applicant’s post-service conduct to be notable and found clear evidence the Applicant’s misconduct while in the Navy was n ot indicative of his overall character. Therefore, due to the Applicant’s post-service conduct, the unique circumstances of this case, and items addressed in I ssue one, the NDRB determined an upgrade to General (Under Honorable Conditio ns) is warranted in this case. Partial relief warranted.




Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . The Applicant is not eligible for further review 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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