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NAVY | DRB | 2011_Navy | ND1101048
Original file (ND1101048.rtf) Auto-classification: Denied

ex-ATAN, USN
Current Discharge and Applicant’s Request
Application Received: 20110316
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)        19990929 - 20000608     Active:   USN 20000609 - 20031123 HON

Period of Service Under Review:
 Date of Current Enlistment: 20031124     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040811      Highest Rank/Rate: AT3
Length of Service: Y ear s M onth s 18 D ays
 Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.67

Awards and Decorations ( per DD 214):      NDSM SSDR (2) AFEM NAVY “ E” GWOTEM NUC

Periods of C ONF :

NJP : 1

- 20040804 :      Article 86 (Absence without leave, UA, 20040719 - 20040723, 5 days)
         Awarded: RIR FOP RESTR Suspended:

S CM : NONE SPCM: NONE C C : NONE Retention Warning Counseling

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 seeks a change to his RE c ode in order to re-enlist in the Armed Forces.
2 .       The Applicant contends family problems contributed to his misconduct.
 3 .       NDRB Issue: Discharge was improper , because it did not meet the requirements for separation due to a pattern of misc onduct.
        
Decision

Date: 20 1 2 0523             Location: Washington D.C .        R epresentation : NONE

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 NDRB did not find any NAVPERS 1070/613 (Page 13) warnings in his service record that were issued during this period of service . However, h is record of service did include one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice: Article 86 (Absence without leave, 1 specification ). The Applicant’s c ommand a dministratively processed him for separation due to a pattern of misconduct. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and submit a written st atement. The Applicant was not entitl ed to an administrative board.

: (Non - decisional) The Applicant seeks a change to his RE c ode in order to re-enlist in the 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, it is not authorized to change an RE code. 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. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Decisional) ( ) . The Applicant contends family problems contributed to his misconduct. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who experience family problems during their enlistment s , such as Navy c haplains, medical or mental health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. Therefore, the Board determined that an upgrade would be inappropriate. Relief denied.
: ( NDRB Issue) ( ) The Applicant’s d ischarge was improper , because it did not meet the requirements for separation due to a pattern of misconduct. Per the Naval Military Personnel Manual, t o be separated due to a pattern of misconduct, the Applicant must have violated a NAVPERS 1070/613 warning . According to regulations, service member s may be separated for a pattern of misconduct when they have:

         (1) Two or more NJP s , court-martial, or civil convictions (or combination thereof);
         (2) Three or more unauthorized absences, each is more than 3 days, but less than 30 days duration;
         (3) A set pattern of failure to pay just debts
         (4) A set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders,          decrees, or judgments concerning dependent support
         (5) Violated a NAVPERS 1070/613 (Rev. 10-81), Administrative Remarks counseling/warning (MILPERSMAN
         1910-204) specifically addressing the non-support.
The Applicant’s service record did include one retention warning during his first period of enlistment. This retention warning, however, does not carry over into his second enlistment. His record of service also included three non-judicial punishments , of which only one was during the current enlistment. Again, the NJPs from the first enlistment do not carry over into the second enlistment. The NDRB determined that his misconduct during the period of enlistment under review did not meet the criteria for separation due to a pattern of misconduct. Therefore, his discharge for a pattern of misconduct was improper and warrants a change in the Narrative Reason for Separation to Secretarial Authority as there is no other narrative reason that accurately describes why he was discharged from the Navy. D ue to the Applicant’s NJP during the current enlistment, the NDRB concluded his misconduct was sufficient to justify characterizing his service as General (Under Honorable Conditions) regardless of the reason for separation . Therefore, a change in the characterization is not warranted.

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 that although the discharge was improper because a pattern of misconduct did not exist , the characterization of his service was justified and equitable due to his misconduct during the current enlistment . Had the Applicant been discharge d for any other reason, his misconduct during the current enlistment would justif y characterizing his service as General (Under Honorable Conditions) . Therefore, the awarded characterization of service shall but the narrative reason for separation shall change to SECRETARIAL AUTHORITY. 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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