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NAVY | DRB | 2012_Navy | ND1201630
Original file (ND1201630.rtf) Auto-classification: Denied

ex-ABHAA, USN
Current Discharge and Applicant’s Request
Application Received: 20120723
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)        20070612 - 20070906     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070907     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110909      Highest Rank/Rate: ABHAN
Length of Service: Year(s) Month(s) 03 D ay(s)
 Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.59

Awards and Decorations ( per DD 214):     

Pe riods of C ONF :

NJP :

- 20100513 :      Article 81 (Conspiracy, to commit larceny of government property, of a value of $500.00 or more, the property of the United States government, and in order to effect the object of the conspiracy the SNM did steal two Dell boxes)
         Article (Failure to obey order or regulation, by wrongfully failing to take laundry to the Ship’s Laundry)
         Article (Larceny, on or about 20100506, steal a laptop computer, of a value of $ 500.00 or more, the property of the United States)
         Awarded: Suspended:

- 20101124 :      Article (Absence without leave , 3 specifications )
         Specification 1: On or about 20101116, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: divisional quarters.
         Specification 2: On or about 20101121, without authority, fail to go at the time prescribed to his ap pointed place of duty, to wit: divisional quarters.
         Specification 3: On or about 20101116, without authority, go from his appointed place of duty, to wit: USS DWIGHT D. EISENHOWER (CVN 69).
         Awarded: Suspended:

- 20110614 :      Article (Absence without leave, on or about 20110507, without authority, go from his a ppointed place of duty to wit: USS DWIGHT D. EISENHOWER (CVN 69).
         Awarded: Suspended:

S CM :    SPCM:    C C :



Retention Warning Counseling:

- 20100513 :      For v iolation of UCMJ Article 81: Conspiracy, Article 92: Failure to obey order or regulation, and Article 121: Larceny.

- 20101124 :      For v iolation of the UCMJ, Article 86: Absence without leave (3 specifications).

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 seeks an upgrade to qualify for medical benefits.
2.       The Applicant seeks an upgrade to qualify for employment opportunities.
3.       The Applicant contends h e completed his enlistment with only minor infractions .
 4.       The Applicant contends h e was targeted, treated unfairly, and did not receive due process during the separation proceedings.

Decision

Date: 20 1 3 0509             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) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 81 ( Conspiracy, to commit larceny of government property, of a value of $500.00 or more, the property of the United States government, 1 specification ), Article 86 ( Absence without leave, 4 specifications) , A rticle 92 ( Failure to obey order or regulation,1 specification), and Article 121 ( Larceny, 1 specification) . 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 rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The administrative separation board voted 3-0 that the preponderance of the evidence supported discharge for Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense), and they further voted unanimously to recommend separation Under Other Than Honorable Conditions. The Separation Authority concurred with the board’s recommendations, and the Applicant was discharged Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct).

: (Nondecisional) The Applicant seeks an upgrade to qualify for medical 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.
: (Nondecisional) The Applicant seeks an upgrade to qualify for employment 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.
: (Decisional) ( ) . The Applicant contends he completed his enlistment with only minor infractions. During the Applicant’s 4 years of service, he received two retention warnings and was found guilty of committing numerous UCMJ violations, some serious, at three NJPs. The Applicant did not reach the end of his enlistment but was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends h e was targeted, treated unfairly, and did not receive due process during the separation proceedings. The Applicant’s record of service shows a command that gave the Applicant multiple opportunities to correct his poor behavior, an d yet despite being given these opportunities, the Applicant continued to commit misconduct until his command initiated administrative separation proceedings instead of the more punitive proceedings such as a court-martial. There is no evidence, nor did the Applicant provide any evidence, that he was targeted, treated unfairly, or did not receive due process. The Applicant was notified of administrative separation proceedings, and he elected his rights to consult with counsel, submit a written statement, and appear before an administrative separation board, which voted unanimously to discharge the Applicant Under Other Than Honorable Conditions. The NDRB determined the Applicant was treated very fairly, was given many chances to correct his poor behavior, was provided all applicable rights and due process during separation proceedings, warranted discharge, and warranted separation Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct). 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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