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NAVY | DRB | 2011_Navy | ND1101303
Original file (ND1101303.rtf) Auto-classification: Denied

ex-AT3(AW), USN
        
Current Discharge and Applicant’s Request
Application Received: 20110426
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)        19960624 - 19960702     Active:   19960703 - 20001228 HON
                                    USNR 20001229 - 20050906 HON
Period of Service Under Review:
 Date of Current Enlistment: 20050907     Age at Enlistment:
Period of E nlistment : 3 Years NO Extension
Date of Discharge: 20071031      Highest Rank/Rate: AT2
Length of Service: Years M onth 25 D ays
 Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 1.8 ( 4 )        OTA: 3.00

Awards and Decorations ( per DD 214):      Rifle EX NAVY “ E ” (3) AFEM (2) GCM EAWS NDSM GWOTSM NMCAM (3)

Periods of UA /C ONF :

NJP : 1

- 20070411 :      Article 134 (General A rticle, reckless endangerment)
         Awarded: RIR FOP Suspended: FOP

S CM : NONE                SPCM: NONE

C C : 1

- 20070430 :       S imple assault .

Retention Warning Counseling: 1

 - Date NFIR:     Extracted from Commanding Officer, Fleet Logistics Support Squadron 64 letter dated 18 October 2007 . For violation of UCMJ A rticle 134 , R eckless Endangerment
         
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960703 UNTIL 20050906 ”
          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .



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

Applicant’s Issues

 1.        The Applicant contends there was no basis for separation due to a pattern of misconduct.
Decision

Date: 20 1 2 0913             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’s record of service included one NAVPERS 1070/613 (Page 13) warning and one non - judicial punishment (NJP) for violation of the U niform Code of Military Justice (UCMJ): Article 134 (General A rticle , R eckless endangerment) . It also included a civil conviction for simple assault. B ased on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified coun sel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends there was no basis for separation due to a pattern of misconduct. According to Navy regulations, members may be separated on the basis of a pattern of misconduct when during the current enlistment they have two or more non-judicial punishments, court s -martial, or civil convictions (or combination thereof), and violated a NAVPERS 1070/613 warning. The Applicant’s record of service reflect s civilian authorities charged him with a ggravated assault, simple assault, reckless endangerment of another person, and harassment. Of those charges, during civilian court proceedings held on 30 April 2007, he was only found guilty of simple assault for which he received probation . However, at NJP proceeding s held on 11 April 2007, prior to the civilian court proceeding, his command found him guilty of the reckless endangerment charge that the civilian court would later find him not guilty of committing . His command also issued him a retention warning for the same. While it appears that the Applicant violated a Page 13 retention warning and so was eligible for discharge due to a Pattern of Misconduct, the NJP, Page 13, and civilian conviction all were from one event. Therefore, the NDRB concurs with the Applicant’s contention that he did not meet the basis for discharge due to a Pattern of Misconduct.

However, the Applicant was also notified of separation proceedings for Misconduct (Commission of a Serious Offense) due to his civilian charge for driving under the influence (DUI). Driving under the influence of alcohol is a violation of Article 111 of the UCMJ . According to N avy regulations, members may be separated based on commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge for the same or closely related offense. Violation of Article 111 of the UCMJ is such an offense. A s erious offense do es not require adjudication by non-judicial or judicial proceedings , however, the offense must be substantiated by a preponderance of the evidence. The Board determined that the Applicant’s arrest for DUI , even without a court conviction, is sufficient to meet the requirement for substantiation by a preponderance of the evidence. D ocumentation found in the Applicant ’ s service record and provided by the Applicant supports the NDRB ’s conclusion that the DUI charge was substantiated by a preponderance of the evidence. The B oard concluded that although the separation due to P attern of M isconduct was improper, the basis for separation due to C ommission of a S erious O ffense was proper . Therefore, the Applicant’s Narrative Reason for Separation will change to Misconduct (Serious Offense).





Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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 outweighed the positive aspects o f the member’s service record. After a complete review of the Applicant’s service in his most current enlistment, the NDRB determined that his service, which included an NJP, Page 13 retention warning, civil conviction, and civil charge , warranted a General 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 , but the N arrative R eason for S eparation shall change to MISCONDUCT (SERIOUS OFFENSE). 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), 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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