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NAVY | DRB | 2011_Navy | ND1101376
Original file (ND1101376.rtf) Auto-classification: Denied

ex-CSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20110510
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       CONVENIENCE OF THE GOVERNMENT or HARDSHIP

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20080517 - 20081207     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110216      Highest Rank/Rate: CS3
Length of Service: Y ear s M onth s 09 D a ys
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 2.3 ( 4 )        OTA: 2.52

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20100923 :      Article 86 (Absence without leave)
         Awarded : , Susp ended: , (suspension vacated on 20110113)
- 20110115 :      Article (Absence without leave - u nauthorized absence in overseas port - terminated by apprehension )
         Article (Failure to obey order or regulation - violation of fleet liberty restrictions )
         Article (Provoking speeches or gestures)
         Awarded: ,       Suspended:

S CM :    SPCM:    C C :     

Retention Warning Counseling :

         - 20100923:      For NJP held regarding unauthorized absence and missing ship ’ s movement. Advised on retention and that any further misconduct could result in administrative separation from the service.
        
Administrative Corrections to the Applicant’s DD 214

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

          Block 2 6 , “ JKA ”
         Block 28, “ PATTERN OF MISCONDUCT ”

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 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.       The Applicant contends that he should have received a medical discharge.
2.       The Applicant contends his personal circumstances, including his ongoing divorce, led to poor judgment and are a mitigati ng factor to his misconduct of record.
3.       The Applicant contends that the firing of his Commanding Officer and Executive Officer show that he was treated unjustly.

Decision

Date: 20 1 2 0607             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 NDRB 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 t hree decisional issues for the NDRB’s consideration; additionally , the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant’s record of service included a NAVPERS 1070/613 retention-counseling warning and two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications), Article (Failure to obey order or regulation), and Article (Provoking speeches or gestures). Based on the offenses committed by the Applicant, the command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement to the Separation Authority . The Applicant was not entitled to an administrative board hearing due to the least favorable characterization of service being considered and the fact that he did not have at least six years of active duty service.

: (Decisional) ( ) . The Applicant contends that he should have received a medical discharge. Per Naval regulations , the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record , or in the documentation submitted by the Applicant , that the Applicant was recommended for or processed for a medical board by proper medical authority. Further more, the evidence of record does not indicate that proper medical authority erred in not initiating a medical board for the Applicant. 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 B oard for Correction of Naval Records can grant this type of narrative reason change. The service record documents a clear Pattern of Misconduct as specified in Naval Military Personnel Manual (MILPERSMAN) Article 1910-140 , which is the reason the Applicant was notified for involuntary separation from the Naval Service. Additionally, although the Applicant was being treated for some form of depression or anxiety with suicidal ideations at the time of discharge, the MILPERSMAN specifies that separation for Misconduct, if warranted, shall take precedence over other reasons for separation. Accordingly, t he NDRB determined that a change to the Applicant’s characterization of service and narrative reason for discharge would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends personal circumstances, including his ongoing divorce, led to poor judgment and are a mitigating factor to his misconduct of record . The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable 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 u s e the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy c haplain, Navy Relief Society, Family Advocacy Programs, or even the Red Cross . Moreover, when the Applicant did seek help through suicidal ideation and attempts, it occurred after his misconduct of record . The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.

The Applicant seeks an upgrade to an Honorable characterization of his service at discharge. An Honorable characterization of service is warranted when the quality of a member’s service meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) characterization of service is appropriate if 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 of his record. The NDRB determined that the Applicant’s service was honest and faithful , but that the evidence of record, including the Applicant’s two nonjudicial punishment s and violation of the retention counseling warning he received , were significant negative aspects that did outweigh the positive aspects of his record. Accordingly, the NDRB determined that the awarded characterization of the Applicant’s service at discharge was proper, was equitable, and that a change to the characterization of service and narrative reason for separation at discharge is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends that the firing of his Commanding Officer and Executive Officer show that he was treated unjustly. T he NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. In particular, the NDRB reviewed the Applicant’s service records to determine if his punishment and subsequent discharge were too harsh for his misconduct. The NDRB determined that the Applicant’s punishment and subsequent discharge with a General (Under Honorable Conditions) characterization of service for a Pattern of Misconduct w ere both proper and equitable and w ere in line with what others receive d for the same or similar offenses. In fact, the Applicant’s misconduct warranted separation with an Under Other Than Honorable Conditions characterization of service , however, his command leniently discharged him with a General (Under Honorable Conditions) characterization of service . The NDRB determined that the subsequent firing of the Applicant’s CO and XO had absolutely no bearing on the Applicant’s documented pattern of misconduct , which warranted separation from the United States Navy . 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 NDRB determined that the discharge was proper and equitable. T herefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) 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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