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NAVY | DRB | 2012_Navy | ND1201261
Original file (ND1201261.rtf) Auto-classification: Denied

ex-LSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20120516
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)        20080207 - 20080611     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20080612     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20111019      Highest Rank/Rate: LSSN
Length of Service: Year(s) Month(s) 08 D ay(s)
 Education Level:        AFQT: 46
Evaluation M arks:         Performance: 2.6 ( 5 )      Behavior: 2.0 ( 5 )        OTA: 2.43

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20110801 :      Article (Absence without leave)
         Article (Missing movement)
         Awarded: Suspended: (Vacated on 20110826)

- 20110826 :      Article (Absence without leave)
         Awarded: Suspended: (Vacated on 20110923)

- 20110923 :      Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer )
         Article (General A rticle, obstructing justice)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20110801 :      For violation of the UCMJ, A rticle 86 , A bsence without leave , and A rticle 87 , M issing movement

Administrative Corrections to the Applicant’s DD 214

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

         “ 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 29, effective 10 November 2009 until Present, 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 service was honorable for over three years until personal problems and mental health issues led to his misconduct.
2 .       The Applicant contends his post - service achievements are worthy of consideration for an upgrade.
Decision

Date: 20 1 3 0307             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 Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications) , Article 87 ( Missing movement, 1 specification) , Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), and Article 134 (General A rticle, obstructing justice, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . Despite being processed to receive an Under Other Than Honorable Conditions characterization, the Applicant was eventually discharged with a General (Under Honorable Conditions) characterization for a Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends his service was honorable for over three years until personal problems and mental health issues led to his misconduct. After serving honorably for three years and two months, the Applicant was found guilty of multiple UCMJ violations at three NJPs over a two-month period and met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). In reviewing the Applicant’s misconduct, the NDRB noted that misconduct of this severity and frequency typically would have resulted in an Under Other Than Honorable Conditions characterization, which is what his command recommended he receive. In his recommendation to the Separation Authority, the Applicant’s commanding officer stated, “Seaman Recruit K_ appeared before me for his third NJP within a two-month period on charges of insubordinate conduct toward a petty officer and obstruction of justice. Seaman Recruit K_ missed several restricted personnel musters following his first NJP. Facing a second NJP, Seaman Recruit K_ attempted to impede this pending NJP proceeding by stealing the restricted muster reports from his disciplinary file. Additionally, on a separate occasion, Seaman Recruit K_ disrespected and disobeyed a First Class Petty Officer in his chain of command by failing to perform assigned tasks and directing a racial slur toward his superior when confronted about his failure to perform his assigned duties.” After a thorough review of the records and the Applicant’s statement, the NDRB determined his personal problems and mental health issues did not mitigate or excuse his misconduct and further determined his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post - service achievements are 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 evidence of employment, SMART transcripts from his in - service period, a certificate of completion of anger management classes, and evidence of mental health treatment visits. 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. The 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 i nformation.


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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