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NAVY | DRB | 2012_Navy | ND1200827

Original file (ND1200827.rtf) Auto-classification: Denied

ex-ABEAR, USN

Current Discharge and Applicant’s Request

Application Received: 20120229

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       REQUESTED BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20060526 - 20060604     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060605     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071116      Highest Rank/Rate: ABEAN
Length of Service: Y ear M onth s 12 D a ys
Education Level:        AFQT: 3 6
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20071016 :      Article (Absence without leave , 3 specifications )
         Specification 1: On 0915-112l, 20071012
         Specification 2: On 0715-1815, 20071009
         Specification 3: On 0700-1500, 20071007
         Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Disobey a lawful order from a commissioned officer on 20070708
         Specification 2: Disobey a lawful order from a commissioned officer on 20070709
         Specification 3: Disobey a lawful order from a commissioned officer on 20070710
         Awarded: Suspended:

- 20071030 :      Article (Absence without leave , 10 specifications )
         Specification 1: 1130-1600, 20071019
         Specification 2: Restricted muster at 1600, 20071019
         Specification 3 : Restricted muster at 0630, 20071026
         Specification 4 : Restricted muster at 1600, 20071028
         Specification 5 : Restricted muster at 1130, 20071029
         Specification 6 : Restricted muster at 1600, 20071029
         Specification 7 : Restricted muster at 1800, 20071029
         Specification 8 : Restricted muster at 2130, 20071029
         Specification 9 : Restricted muster at 0600, 20071030
         Specification 10 : Restricted muster at 1100, 20071030
         Awarded : Susp ended:

- 20071106 :      Article (Absence without leave , 3 specifications )
         Specification 1: Restricted muster at 1130, 20071102
         Specification 2: Restricted muster at 0630, 20071103
         Specification 3: Restricted muster at 0730, 20071104
         Awarded : Susp ended:

S CM : SPCM: C C :     Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

         “ ABEAR ”
         “ E1 ”

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 11, effective 26 April 2005 until 11 June 2008, 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 of the UCMJ, Article 92 .

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

Applicant’s Issues

1.        The Applicant contends his discharge was base d on minor infractions and was not a Pattern of Misconduct . He also contends he was not offered an opportunity to rehabilitate his behavior and did not commit gross, inappropriate, or damaging misconduct.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 30124             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 Board did complete 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 for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave , 16 specifications : 13 for missing restricted musters and 3 for being UA from appointed place of duty ) and Article (Failure to obey order or regulation , 3 specifications : D isobey a lawful order from a commissioned officer on 20070708; D isobey a lawful order from a commissioned officer on 20070709; D isobey a lawful order from a commissioned officer on 20070710 ) . Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to submit a written statement and request an administrative board, but exercised his right to consult with a qualified counsel .

: (Decisional) ( ) . The Applicant contends his discharge was based on minor infractions and was not a Pattern of Misconduct. He also contends he was not offered an opportunity to rehabilitate his behavior and did not commit gross, inappropriate, or damaging misconduct. The Applicant did not meet the requirements for separation due to a Pattern of Misconduct nor was he notified of administrative separation processing for a Pattern of Misconduct. Rather, he met the requirements and was notified of administrative separation processing for Misconduct (Commission of a Serious Offense). His violation of UCMJ Article 92 (Failure to obey order or regulation, 3 specifications) was the Serious Offense. Per Naval Military Personnel Manual (MILPERSMAN) , (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE , a serious offense is a UCMJ violation that warrants a punitive discharge (i.e., Bad Conduct or Dishonorable). Per Appendix 12 of the Manual for Courts-Martial, violation of Article 92 warrants a Bad Conduct or Dishonorable Discharge as the result of a Special or General Court-Martial if charges are referred to a court-martial. His command, however, did not refer charges to a court-martial but adjudicated the offenses at Captain’s Mast. The Applicant was not discharged after this NJP but was put on restriction and allowed to continue his service in the Navy. However, within three weeks of his first NJP, he went to NJP two more times for 13 specifications of violating UCMJ Article 86 (Absence without leave). Despite being given opportunities to rehabilitate his poor behavior, the Applicant continued with misconduct, and his command determined he was no longer fit for military service. He was then notified of administrative separation processing for Misconduct (Commission of a Serious Offense). After a complete review of the records, the NDRB determined the Applicant’s discharge was proper and equitable, and his characterization of service was completely in line with what others received for similar misconduct. Further, his narrative reason for separation of Misconduct (Serious Offense) is correct per MILPERSMAN Article 1910-142, which also states that the assigned Separation Code (Block 26 on the DD Form 214) of HKQ is for “ Involuntary discharge in lieu of further processing or convening of a board. (Use when administrative board was waived.)” The Applicant waived his right to appear before an administrative separation board and so HKQ is the correct Separation Code. Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. 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 personal statement, evidence of employment, and a criminal background check. 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. T he 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.

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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NAVY | DRB | 2012_Navy | ND1200827

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