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NAVY | DRB | 2012_Navy | ND1200981
Original file (ND1200981.rtf) Auto-classification: Denied

ex-BUCA, USN
Current Discharge and Applicant’s Request
Application Received: 20120327
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)        19990925 - 20000718     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000719     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050211      Highest Rank/Rate: BUCN
Length of Service: Y ear s M onth s 23 D a ys
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 2.8 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 2.83

Awards and Decorations ( per DD 214):      Rifle Pistol ( 3 ) KDSM

Periods of C ONF :

NJP :

- 20011121 :      Article (Failure to obey order or regulation by negligently failing to maintain the number of 5.56MM rounds issued to him at the beginning of his watch)
         Awarded: Suspended: 1MONTH

- 20041216 :      Article (Absence without leave , 3 specifications )
         Specification 1: Command Post Exercise watch at 1400, 20041102
         Specification 2: Muster at 1430, 20041108
         Specification 3: Muster at 1530, 20041116
          Article 87 (Missing movement)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications )
         Specification 1: Willfully disobey a Senior Chief Petty Officer to have his FEX gear in his barracks and not in Los Angeles
         Specification 2: Willfully disobey by not reporting Saturday morning in uniform with gear to let the medical department determine his status
         Awarded : Susp ended:

S CM :            S PCM:            C C :

Retention Warning Counseling :

- 20011121 :       For dereliction in the performance of duty.




NDRB Documentary Review Conducted (date):        20061130
NDRB Documentary Review Docket Number:   ND06-00478
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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.       The Applicant contends his discharge is inequitable based on mitigating factors related to his two NJPs.
2.       The Applicant contends his post - service conduct is worthy of consideration for an upgrade .

Decision

Date: 20 1 3 0513             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 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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation) , Article 86 ( Absence without leave, 3 specifications ), Article 87 (Missing movement), and Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel, but waived his rights to submit a written statement and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on mitigating factors related to two NJP s . The Applicant contends the p unishment rendered at his 21 November 2001 NJP was excessive considering the offense. Regarding his 16 December 2004 NJP , the Applicant provided evidence that he suffered from an acute medical condition on the day prior to his unit’s movement to an exercise site . The Applicant co ntends he was granted authorization to miss movement on 27 November 2004 and travel to the exercise site on 28 November 2004. Despite the Applicant’s testimony, he did not provide any documentary evidence to support his contention that he was dismissed from movement on 27 November 2004 . Contrary to his testimony and contained within the Applicant’s record of service, his Form 1627/7 (Report of Offense s ) dated 13 December 2004 states: “BUCN [Applicant] reported a foot injury on the night of 26 November, BU1 B o_ instructed BUCN [Applicant] to show up the next day with his gear and have medical asse ss his injury. On the morning of the 27 th BUCN [Applicant] showed up late for his 0845 bus muster without his gear, wearing civilian attire. Medical staff determined BUCN was fit for duty. BUCN did not bring his gear nor had it been moved from his house in Los Angeles to his room in the barracks as instructed by BU1 Bu _ . Because of BUCN [Applicant’s] delinquency , he missed movement . ” The NDRB discerned no impropriety or inequity in either of his NJPs and the resulting punishment and further determined his discharge for a Pattern of Misconduct was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post - service conduct is worthy of 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 California criminal history report indicating no criminal history, verification of enrollment and progress toward degree completion at Los Angeles City College, and four personal character references. C ompletion 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. The NDRB determined 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 summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for additional reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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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