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NAVY | DRB | 2011_Navy | ND1101314
Original file (ND1101314.rtf) Auto-classification: Denied

ex-ETSN, 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)        20000229 - 20000704     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000705     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060616      Highest Rank/Rate: ET3
Length of Service: Y ear s M onth s 12 D a ys
Education Level:        AFQT: 40 /62
Evaluation M arks:         Performance: 2.88 ( 8 )     Behavior: 2.5 ( 8 )        OTA: 2.87

Awards and Decorations ( per DD 214):      NDSM GWOTSM GWOTEM SSDR

Periods of C ONF :

NJP : 4

- 20001126 :      Article 92 (Failure to obey order or regulation)
         Awarded: RIR FOP Suspended: RIR FOP Suspension v acated 20001211

- 20030722 :      Article 121 (Larceny)
         Awarded : RIR FOP 2 months RESTR Susp ended: RIR FOP 1 month

- 20060309:      Article 92 (Failure to obey order or regulation, consuming alcohol while in a liberty risk status)
         Awarded: RIR FOP RESTR EPD Suspended: RIR FOP Suspension v acated 20060523]

 - 20060523:      Article 86 (Absence without leave, UA, 20060522)
         Article 91 (Insubordinate conduct toward a warrant officer, refusing to remove cat’s eye contact lenses )
         Awarded: RIR FOP C BW Suspended: RIR FOP

S CM : NONE SPCM: NONE C C : NONE Retention Warning Counseling : NONE
Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ 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:                  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 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

C. 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 the UCMJ, Article s 91 , 92 , and 121 .



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

Applicant’s Issues

 1.       The Applicant seeks an upgrade in order to qualify for the Montgomery G.I. Bill.
2.       The Applicant contends she was treated unjustly by her command after attempting to seek help for pre-service traumatic events.
3.       The Applicant contends the contact lenses she was charged with refusing to remove were not cat’s eye contacts.
 4.       The Applicant believes her post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 0710             Location: Washington D.C .        R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The N aval Discharge Review Board ( N DRB ) , 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 submitted three decisional issues for the NDRB’s consideration. The Applicant’s record of service included four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification ), Article 91 (Insubordinate conduct toward a warrant officer, 1 specification ), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 121 (Larceny , 1 specification ). Based on the Applicant’s misconduct , her command administratively processed her for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived her rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board .

: (Nondecisional) The Applicant seeks an upgrade in order to qualify for the Montgomery G.I. Bill. 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.
: (Decisional) ( ) . The Applicant contends she was treated unjustly by her command after attempting to seek help for pre-service traumatic events. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that her command treated her unfairly. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant’s service included four NJPs f or violations of UCMJ Articles 86, 91, 92, and 121. Violations of UCMJ Articles 91, 92, and 121 are considered serious offenses for which a punitive discharge is authorized. The Applicant’s record instead reflects an administrative discharge. Furthermore, the Applicant’s record reflects the following comments from her Commanding Officer to the Commander, Nav y Personnel Command during the separation proceedings : “The Applicant has been mentored on a continual basis by her work center supervisor and the senior leadership in the Combat S ystems D epartment. Her mentor has spent over 150 hours on and off-duty to help guide her in the right direction. Moreover, the Applicant has received over 13 counseling sheets for failing to perform proper PMS, poor work performance, irresponsible behavior, and for being UA. The Applicant has also spoken with the ship’s psychiatrist, Command Chaplain, and the Command Master Chief to help conform to the minimum standards expected of every Sailor.” The NDRB determined the Applicant was given numerous chances to seek and receive assistance and thus determined an upgrade would be unwarranted. Relief denied.





: (Decisional) ( ) . The Applicant contends the contact lenses she was charged with refusing to remove were not cat’s eye contacts. The Applicant’s record reflects an NJP on 23 May 2006 for UCMJ Article 86 and 91 violations. The Article 91 violation was a result of insubordinate conduct toward a warrant officer for not removing her contact lenses when ordered to do so. The Applicant’s record reflects her written statement in which she states that she did not blatantly disregard her Division Officer’s direct order, she understood she was not authorized to wear the contact lenses in question, and that she failed to remove them after being ordered to do so because she was distracted from an encounter immediately after the direct order, was tired, went to bed with her contacts in, and showed for duty the next day still wearing the same contacts. The NDRB determined a characterization upgrade is not warranted. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant believes her post-service conduct is worthy of consideration. The NDRB considers 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. The Applicant provided a personal statement, five letters of recommendation from friends, faculty, and staff from the Palm Beach Atlantic University, and a letter from the Palm Beach Atlantic University recognizing her Provost List achievement with a 3.75 GPA. H owever, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 at the time of discharge . T herefore, 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 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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