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NAVY | DRB | 2011_Navy | ND1101703
Original file (ND1101703.rtf) Auto-classification: Denied

ex-CMCR, USN
Current Discharge and Applicant’s Request
Application Received: 20110711
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
 Inactive:         US N R (DEP) 19940428 - 19941202 ELS       Active:  
USNR (DEP) 19950428 - 19950627

Period of Service Under Review:
 Date of Current Enlistment: 19950628     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980324      Highest Rank/Rate: CMCN
Length of Service : Y ear s M onth s 19 D a ys
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 2. 3 ( 3 )      Behavior: 3. 3 ( 3 )        OTA: 2. 77

Awards and Decorations ( per DD 214):      Rifle (2) N ATO MEDAL

Period of UA :

NJP :

- 19971105 :      Article ( Insubordinate conduct, 2 specifications )
         Specification 1: Disrespect toward SK3
         Specification 2: Failure to obey a lawful order from MA1
         Article (Violation of a lawful general regulation, uniform regulations)
         Awarded: Suspended:

- 19971210 :      Article (Dereliction of duty)
         Awarded: Suspended:

S CM :

- 19980220 :      Article (Assault), 2 specifications
         Specification 1: Strike an EO3
         Specification 2: Strike an EOCN
         Sentence: (19980220-19980227, 8 days)

SPCM:    C C :

Retention Warning Counseling:

- 19971106 :      For disrespect to a petty officer, failure to obey a lawful order from a petty officer and failure to obey a general regulation as evidenced by your CO’s NJP for violation of the UCMJ, Article 91 and 92 on 19971105.


Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
14 December 1998, 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 d esires burial at the Houston VA Cemetery (Department of Veterans Affairs/Houston National Cemetery).
2 .       Applicant contends his record of service, as evidenced by his service in Bosnia and Desert Storm, as well as his Good Conduct Medals, citations, and other recognition, warrants consideration for upgrading his discharge to Honorable.

Decision

Date: 20 1 1 0804             Location: Washington D.C .        R epresentation :

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

 The term “Applicant” refers to the service member affected by the discharge regardless of whether the service member is living or deceased. In this case, the former service member’s father is requesting an upgrade to his son’s characterization to Honorable. Although requests by families to upgrade the characterization of a deceased former service member are infrequent, they are not unique. The NDRB reviews these cases as if the Applicant was still living and in an objective manner, but takes into consideration certain documentation may not be available or reasonable to obtain.

 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 Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a Petty Officer, 2 specifications) and Article 92 ( Failure to obey order or regulation, 2 specifications). His record of service also included for of the UCMJ: Article 128 ( Assault, 2 specifications). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine if he waived his rights to consult with a qualified counsel and submit a written statement. However, the Separation Code on the Applicant’s DD 214 indicates he waived his right to an administrative separation board.

: (Non - decisional) The Applicant ’s representative desires to bury the Applicant at a National Cemetery. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the ND R B. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s eligibility for burial at a National Cemetery or eligibility for any other v eterans benefits. Regulations limit the Board’s review to a determination of the propriet y and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his record of service, as evidenced by his service in Bosnia, Desert Storm, citations, and Good Conduct Medals, warrant consideration for upgrading his discharge to Honorable. Despite a service member’s prior record of service , including awards and other forms of recognition , certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Violation of Articles 91, 92, and 128 of the UCMJ are such offenses. Insubordinate conduct toward a noncommissioned officer or petty officer , failing to obey orders or regulations, and committing an assault can result in an unfavorable characterization of discharge, or at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty at two nonjudicial punishments and a summary court - martial of committing these offenses , which meets the requirement for a Pattern of Misconduct per the Naval Military Personnel Manual . His command chose not to pursue a punitive discharge but 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. Relief denied.



The Applicant stated that he was awarded two Good Conduct Medals. This is incorrect. T o receive a Good Conduct Medal, a service member must have three years of service with a misconduct-free record . If , within the three-year period, the record is marred by an NJP or court-martial, a new start date will be established corresponding to the date of the proceedings . The Applicant was not eligible to receive a Good Conduct Medal , because he had less than three years of service and received punishment at two NJPs and a summary court-martial during that period. The references to Good Conduct Medals found in his service record pertain to restarting his eligibility to receive the medal.

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, through a qualified representative, 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), 2 Navy Annex, Washington, DC 20370-5100 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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