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NAVY | DRB | 2011_Navy | ND1101113
Original file (ND1101113.rtf) Auto-classification: Denied

ex-BMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20110330
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)        20061024 - 20070402     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070403     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100517      Highest Rank/Rate: BM3
Length of Service: Y ear( s ) M onth( s ) 15 D a y ( s )
 Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.87

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :
- 20070719 :      Article (UA , 20070711-20070712 ) , 1 day
         Awarded: Suspended:

- 20070822 :      Article (Fail to obey a lawful order or regulation)
         Awarded : Susp ended:

- 20100510 :      Article (D runken driving, D UI , 20100223 )
         Article (Ass a ult , 20100315 )
         Awarded: (to E-3) Suspended:

S CM :             SPCM:             C C :

Retention Warning Counseling :

- 20070719 :       For violation of UCMJ Article 86, Unauthorized absence.
- 20070822 :       For violation of UCMJ Article 92, F ailure to obey an order .

Administrative Corrections to the Applicant’s DD 214

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

          Remarks : D elete the statement “ CONTINUOUS HONORABLE ACTIVE SERVICE
          FROM 2007APR03 UNTIL 2010MAY06 ”

The NDRB will recommend to the Command er, 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 29, effective 10 November 2009 until Present, 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.        Applicant contends his discharge for pattern of misconduct was improper.

Decision

Date: 20 1 2 05 23             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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 0800 on 11 July 2007 to 1500 on 12 July 2007 ), Article 92 ( Failure to obey an order or regulation ), Article 111 ( Drunken driving , 23 February 2010, as evidenced by NCIS Interim Report dated 19 April 2010), and Article 128 ( Assault, on civilian female by placing his hands around her throat and choking her , 15 March 2010, as evidenced by NCIS Interim Report dated 19 April 2010 and Snohomish County, WA Provisional Release Order dated 15 March 2010 ). Additionally, the Applicant’s record reflected an enlistment waiver for a DUI offense he committed prior to entering the Navy. Based on the repeated and serious nature of the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing (for C ommission of a S erious O ffense and P attern of M isconduct) using the procedure on 6 May 2010 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board .

On 7 May 2010, the Applicant’s c ommanding o fficer endorsed his administrative separation package, stating , “During (the Applicant’s) tenure in the Navy, he has been a serious administrative burden on his chain of command. He has been the subject of a number of incidents involving unauthorized absence, failure to obey lawful orders, driving under the influence , and assaults. These incidents led to three nonjudicial punishment adjudications. (The Applicant’s) chain of command states that his conduct and performance are substandard and prejudicial to good order and discipline. Further, they do not feel that (the Applicant) could ever be a productive service member as a United States Sailor. This is not the kind of Sailor the Navy needs to meet its mission. It is abundantly clear that (the Applicant) has not taken full responsibility for his actions. Accordingly, I recommend that (the Applicant) be separated for Misconduct due to a Pattern of Misconduct with an Other than Honorable discharge . ” On 11 May 2010, the Separation Authority directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct. The Applicant was separated on 17 May 2010.

: (Decisional) ( ) . The Applicant contends his discharge for pattern of misconduct was improper. The Board co nducted a detailed review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record reflected two NAVPERS 1070/613 retention warnings and three NJPs for violat ions of the UCMJ , which included Article 92 (Failure to obey an order or regulation), 111 (DUI), and 128 (Assault). These multiple NJPs and Page 13 warnings met the requirements for separation due to a Pattern of Misconduct. Further, v iolation of UCMJ Articles 92, 111, and 128 are considered “serious offenses” and are punishable by a B ad C onduct or D ishonorable D ischarge and confinement between six months and two years if awarded at trial by court-martial (Special or General). However, instead of referring the Applicant to trial by court-martial , his command opted to adjudicate his offenses at NJP and then process him for administra tive separation. T he Applicant’s record clearly demonstrate d he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.

Per the Nav al Military Personnel Manual, w hen a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors and f alls short of w hat is required for an upgrade in the characterization of service. Relief denied.
The NDRB did notice that there was an erroneous statement in Block 18 of the Applicant’s DD Form 214 concerning continuous honorable active service. This statement was included on the DD Form 214 in error. The NDRB will recommend to Navy Personnel Command that a new DD Form 214 be issued without that statement.

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 his 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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