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NAVY | DRB | 2011_Navy | ND1101576
Original file (ND1101576.rtf) Auto-classification: Denied

ex-AO1, USN
Current Discharge and Applicant’s Request
Application Received: 20110610
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       END OF ACTIVE OBLIGATED SERVICE

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19970221 - 19970825     Active:   19970826 - 20010419 HON
                                    USN 20010420 - 20060202 HON
Period of Service Under Review:
Date of Current Enlistment: 20060203     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100715      Highest Rank/Rate: AO1
Length of Service: Y ear s M onth s 13 D a ys
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 4.4 ( 3 )      Behavior: 4.4 ( 3 )        OTA: 4.05

Awards and Decorations ( per DD 214):      Rifle EX Pistol EX NMCAM (4) NUC MUC NAVY”E” GCM (4) NDSM ICM GWOTEM GWOTSM OSR (2)

Periods of UA /C ONF :

NJP : NONE S CM : NONE SPCM: NONE C C : NONE Retention Warning Counseling : NONE

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 19970826 UNTIL 20060202 ”
         “ UNDER OTHER THAN HONORABLE CONDICTIONS ”
        
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 :        


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

Applicant’s Issues

 1.        The Applicant contends his discharge was b ased on an isolated incident in almost 13 years of faithful service with no other adverse action.
2.       The Applicant contends procedural unfairness and weaknesses in the substantive evidence against him.
3.       The Applicant contends that while awaiting discharge, he was involved in a vehicle accident that rendered him in need of medical attention that was not provided before discharge.
4 .       The Applicant believe s his post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 0906             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 discharg e 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. The Applicant had charges referred to a Special Court-Martial for v iolations of the Uniform Code of Military Justice (UCMJ): Articles 92 (Failure to obey order or regulation) , 107 (False official statement) , 112a (Wrongful use of a controlled substance) , and 134 (General Article) following a command urinalysis . However, at some point during the adjudication process , those charges were d ropped, a nd the command decided to take administrative separation actions . When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel , submit a statement, and request an administrative board .

: (Decisional) ( ) . The Applicant submitted in-service awards and certificates of completion for various military courses. The Applicant contends his discharge was based on an isolated incident in almost 13 years of faithful service with no other adverse action. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. A preliminary inquiry was conducted into the allegations that the Applicant violated Articles 92 ( Failure to obey order or regulation, 2 specifications: dereliction in the performance of his duties and failure to obey a regulation) , 107 (False official statement), 112a ( W rongful use of a controlled substance) , and 134 (General Article) of the UCMJ. While h is command did initially pursue a punitive discharge at a Special Court-Martial, they ultimately opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Additionally, the Applicant had two previous Honorable enlistments. Relief denied.

: (Decisional) ( ) . The Applicant contends procedural unfairness and weaknesses in the substantive evidence against him in the process of his administrative discharge. 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 his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the substantive evidence against him was weak and procedures were unfair in the administrative discharge process . The NDRB fully considered the specific arguments made by the Applicant but found no impropriety or inequity in the separation board or proceedings. Relief denied.





: (Decisional) ( ) . The Applicant contends while awaiting discharge, he was involved in a vehicle accident that rendered him in need of medical attention that was not provided before discharge. The record contained no evidence of any wrongdoing by the Applicant’s c hain of c ommand or anyone else in the discharge process. The NDRB discerned no impropriety or inequity in the Applicant’s discharge. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant mentions that he has had no criminal activity since his discharge . 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 criminal history report from his local court house as evidence of criminal-free activity since his d ischarge . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. The 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 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, 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 s of the UCMJ, Article s 92, 107, 112a, and 134.


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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