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NAVY | DRB | 2011_Navy | ND1101555
Original file (ND1101555.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110608
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)        20080613 - 20081124     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081125     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100820      Highest Rank/Rate: SA
Length of Service: Y ear M onth s 26 D a ys
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 GWOTSM     

Periods of UA /C ONF :

NJP : 2
- 20090617 :      Article 92 (Failure to obey an order or regulation, underage drinking , 20090423 )
         Awarded: FOP (2 months) RESTR EPD Suspended: FOP ( suspend 6 months )

- 20100225 :      Article 92 (Failure to obey order or regulation , 20100221 )
         Article 134 (General Article , 20100221 )
         Awarded : RIR (to E-1) RESTR EPD Susp ended:

S CM : NONE                SPCM: NONE                 C C : NONE          Retention Warning Counseling : N ot Found in Record

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 personal stressors contribut ed to the misconduct for which he was separated .
2.       Applicant contends he did not understand his right to refuse NJP and demand trial by court-martial.

Decision

Date: 20 1 2 0 90 6             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 NDRB conducted a thorough review of the Applicant’s record of service to determine whether his discharge met the pertinent standards for propriety and equity. The Applicant’s record of service included two nonjudicial punishments ( NJPs ) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation , 2 specifications : underage drinking, 23 April 2009, and one other incident, 21 February 2010 ) and Article 134 (General Article , 21 February 2010 ) . Based on the offense s committed by the Applicant, his command administratively processed him for separation . When notified of administrative separation processing for M isconduct - P attern of M isconduct and M isconduct - C ommission of a S erious O ffense using the procedure on 22 July 2010 , the Applicant waived rights to co nsult with a qualified counsel , submit a written statement , and request a General Court - Martial Convening Authority Review . The Applicant was not entitled t o an administrative separation board. On 3 August 2010, the Separation Authority direct ed that the Applicant be separated from the Navy with an Under Honorable Conditions (General) character of service due to Misconduct - Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends personal stressors contributed to the misconduct for which he was separated. The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , that he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Navy is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned . After careful consideration, the Board d etermined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not understand his right to refuse NJP and demand trial by court-martial. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Additionally, w ithin the Applicant’s service record was a NAVPERS 1070/607 Court Memorandum that provided official record of CO’s NJP that occurred on 17 June 2009. Block 41 of the form contained the following statement: “Member was advised of his right to confer with legal counsel and to refuse NJP prior to having his case heard at NJP per U . S . vs Booker. Member waived his right to full adversary criminal proceeding and waived his right to demand trial by court martial . ” Although this statement was not included on the NAVPERS 1070/607 for the Applicant’s second NJP, the Board determined he was aware of his rights having been previously advised. Moreover, when notified of pending administrative separation processing for P attern of M isconduct and C ommission of a S erious O ffense, the Applicant waived his rights to consult qualified counsel, submit a written statement (in rebuttal to the proposed separation), and request a General Court - Martial Convening Authority Review. After careful consideration, the NDRB determined that the Applicant was aware of his rights and that he had ample opportunity to defend himself by presenting an adequate defense at NJP or demanding trial by court-martial. 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 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 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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