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NAVY | DRB | 2011_Navy | ND1101635
Original file (ND1101635.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20110622
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)        20040720 - 20050626     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050627     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070808      Highest Rank/Rate: A N
Length of Service: Y ear s M o nth s 11 D a ys
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 2.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.33

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

Periods of UA/ C ONF : UA /I n Hands of Civil Authorities 20070430 - 20070531 (32 days)               CONF: NONE

NJP : 3

- 20061021 :      Article 86 (Absence without leave, 20060719)
         Article 89 (Disrespect toward a superior commissioned officer)
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended: RIR FOP (suspend 6 months)
         [ * Suspension v acated due to further misconduct on 200610 3 1]

- 20061201 :      Article 86 (Absence without leave, failure to go to restricted personnel muster)
         Awarded : C BW 3 days Susp ended:

- 20070601:      Article 86 (Absence without leave, 2 specifications)
         Specification 1: UA from duty section muster
         Specification 2: UA, 20070430 - 20070531, 32 days
          Awarded: RIR (to E-1) FOP RESTR Suspended: RIR FOP (suspend 6 months)
        
S CM : NONE                SPCM: NONE

C C : 1
- NFIR :   Offense: Carrying a concealed weapon, underage purchase and possession of alcohol, and public intoxication ; arrest date 20060704 .
         Sentence : NFIR

Retention Warning Counseling : 1
- 20061021: For failing to go to appointed place of duty and behaving with disrespect toward a Lieutenant, USN, on or about 19 Jul 06, as evidenced by CO’s NJP of 21 October 2006.


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 19 May 2008, 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 seeks a discharge upgrade t o obtain veteran education benefits and increase employment opportunities .
 2.       Applicant contends he was one of the hardest working Airmen and completed all of his jobs on time.
Decision

Date : 20 1 2 0 904             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. T he NDRB conducted a thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention warning and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 4 specifications : Failed to go to appointed place of duty, 19 July 2006; failed to report for restriction muster, between 31 October and 26 November 2006; failed to report for duty section muster, 24 March 2007; UA /I n Hands of Civil Authorities from 30 April - 31 May 2007, 32 days ) and Article 89 (Disrespect toward a superior commissioned officer , a U.S. Navy Lieutenant, by throwing his bag on the deck, refusing to pick it up , and walking away ) . The record also reflected one civil conviction for carrying a concealed weapon, underage purchase and possession of alcohol, and public intoxication. Based on the repeated and serious offenses 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 ) , M isconduct (C ommission of a S erious O ffense ) , M isconduct (C ivil C onviction ) , and M isconduct (D rug A buse) using the procedure on 7 May 2007 , the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . Upon conclusion of the Administrative Separation Board proceedings on 7 June 2007, the Board determined the following: ( By 3-0 vote) that the evidence supported the Applicant ’s pattern of misconduct, commission of a serious offense, and civil conviction (but not drug abuse); (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions characterization of service. On 7 August 2007, the Separation Authority directed that the Applicant be separated from the Navy with an Under Other T han Honorable Conditions discharge. The Applicant was discharged on 8 August 2007 as directed.

Issue 1 : (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits and to increase employment opportunities. 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends he was one of the hardest working Airmen and completed all of his jobs on time. The Applicant’s service record contained an Evaluation Report, dated 1 March-15 July 2006, in which the Reporting Senior stated , “Reported to Fuels Division full of motivation with the right attitude. Since then, his attitude and lack of military bearing have caused him to become an administrative burden…(the Applicant) displays poor judgment which is the root of his troubles. Undermines authority and lacks motivation toward completing any goals. The confidence of his chain of command in him is lost . ” In the Applicant’s final Evaluation Report, dated 16 July 2007-7 August 2008, the Reporting Senior stated : “(The Applicant) is a below average Sailor who has trouble conforming to the Navy’s Core Values. His performance has been detrimental to the good order and discipline of this ship. Not recommended for


advancement or retention in any branch of the United States Armed Forces . ” During the Applicant’s two years of service, he had three NJPs, a civil conviction, and a Page 13 retention warning. Per the Naval Military Personnel Manual, w hen a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. 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 outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of his grade or length of service, and falls short of w hat is required for an upgrade in the characterization of service. 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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