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NAVY | DRB | 2011_Navy | ND1102120
Original file (ND1102120.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20110915
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)        20050429 - 20050810     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050811     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090213 (Discharged in Absentia)     Highest Rank/Rate: FN
Length of Service: Y ear( s ) M onth( s ) 03 D a y ( s )
 Education Level:        AFQT: 82
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.25

Awards and Decorations ( per DD 214):      NONE

Periods of UA/ C ONF : UA 20060621 - 20060719 ( 2 8 days )              C CU 20060826 - 20060831 (5 days)
UA 200607 20 - 20060809 ( 2 1 days )
UA 20060 9 08 - 20090114 ( 8 60 days )

NJP :
- 20051123 :      Article (Absence without leave , failed to go to appointed place of duty , 3 specifications )
         Awarded: FOP (to E-2) Suspended:

S CM :             SPCM:             C C :

Retention Warning Counseling : 1

- 20051123 :       For Commanding Officer NJP imposed on 20051123 for violation of UCMJ A rticle 86 (Failure to go to appointed place of duty) .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
Block 4a Grade, Rate, or Rank, should read: “SR”
Block 4b, Pay Grade, should read: “E1”
Block 12h, Effective Date of Pay Grade, should read: “05 12 13”
          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL ”
         “ 21JUN06 TO 19JUL06, 20JUL06 TO 09AUG06, 08SEP06 TO 14JAN09 ”

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 23, effective 12 June 2008 until 9 November 2009, 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 .



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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant contends personal stress and relationship hardship mitigates the misconduct for which he was separated.

Decision

Date: 20 1 2 1004             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 Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning and nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , UA, 3 specifications: 0830 on 12 November 2005; 0645 on 14 November 2005; and 0630 on 16 November 2005 ) . On 13 December 2005, the Applicant was disenrolled from the Nuclear Power Training Program and administratively reduced to E-1. He was subsequently transferred to the USS Carney in January 2006. After transfer to the USS Carney (Mayport, FL), the record indicates the Applicant was listed in a UA status at 0630 on 21 June 2006 and remained so until his surrender to military authorities in Fort Hamilton , NY at 0700 on 19 July 2006 (a period of 28 days) . The Applicant was issued temporary arrest orders and directed to fly back to his command in Florida via a ticketed commercial f light , h owever, the Applicant failed to show up for his flight. After he failed to arrive back to his command, the Applicant was again placed in UA status on 19 July 2006 until his surrender to military authorities on 10 August 2006 (a period of 22 days). On 8 September 2006, the Applicant was again placed in a UA status and remained so until return to military control on 14 January 2009 (a period of 860 days). Based on the repeated offenses committed by the Applicant, his command processed him for administrative separation. When notified of administrative separation processing using the procedure on 12 January 2009 (rights acknowledged and signed on 15 January 2009) , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 29 January 2009, the Commander, Navy Personnel Command directed the Applicant be discharged (in absentia) with an Under Other Than Honorable Conditions discharge due to Misconduct (AWOL). The Applicant was discharged on 13 February 2009 as directed.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.

 : (Decisional) ( ) . The Applicant contends personal stress and relationship hardship mitigates the misconduct for which he was separated. C ertain serious offenses warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation s of UCMJ Article 86 meet this standard . While he may feel his youth and immaturity in dealing with personal stressors was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. 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. After careful consideration, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. 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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