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NAVY | DRB | 2013_Navy | ND1300469
Original file (ND1300469.rtf) Auto-classification: Denied

ex-DK3, USN
Current Discharge and Applicant’s Request
Application Received: 20121227
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)        19891120 - 19900102     Active:            19901003 - 19940804 HON
                                    USN      19940805 - 19970702 HON
Period of Service Under Review:
Date of Current Enlistment: 19970703     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010309      Highest Rank/Rate: DK2
Length of Service: Y ear( s ) M onth( s ) 07 D a y ( s )
 Education Level:        AFQT: 69
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.52

Awards and Decorations ( per DD 214):      (2) JMU A (2) (2) (2)
NJP :

- 20000923 :      Article ( Absence without leave, 20000903 - 20000907, 4 days)
         Awarded: Suspended:

S CM :    CC:

SPCM:

- 20000302 :       Art icle (False official statement)
         Art icle (Larceny and wrongful appropriation)
         Art icle 132 (Frauds against the United States)
         Sentence : 20000302 - 20000421, 51 days

Retention Warning Counseling :

- 20000329 :       For Article 121 - Larceny, Art icle 132 - Fraud

Administrative Corrections to the Applicant’s DD 214

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

         “ 10 03 13 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM       901003 UNTIL 970702 ”
         “ PATTERN OF MISCONDUCT ”
         “ 02MAR00 TO 21APR00, 03SEP00 TO 07SEP00 ”

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 22, effective 15 December 1998 until 21 August 2002, 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 in-service conduct warrants an upgrade.
2.       The Applicant contends his discharge was improper since it was an isolated mistake.

Decision

Date : 20130905             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 discharg e 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 Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 20000903 - 20000907, 4 days) , and for of the UCMJ: Article (False official statement), Article (Larceny and wrongful appropriation), and Article 132 (Frauds against the United States). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to c onsult with a qualified counsel and submit a written statement, but exercised his right to request an administrative board . On 18 January 2001, the Applicant , through his counsel , submitted a conditional waiver to for e go his right to an administrative board if the Applicant would be discharged with a General discharge. His command accepted the conditional waiver, and the Separation Authority approved the General discharge for a Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. The Applicant received Honorable discharges for his first two enlistments from October 1990 to July 1997. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third enlistment, the Applicant received a Special Court-Martial conviction, a retention warning, and was found guilty at an NJP of violating UCMJ Article 86. This misconduct met the requirements to be administratively separated for a Pattern of Misconduct. The Applicant 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 in his third enlistment , the NDRB determined his service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper since it was an isolated mistake. The record clearly shows the Applicant had a pattern of misconduct with his Special Court-Martial conviction, retention warning, and finding of guilt at NJP. T he record also shows the Applicant submitted a conditional waiver to for e go his right to appear before an administrative board if the Applicant would be discharged with a General , which implies that his command recommended he be discharged Under Other Than Honorable Conditions . If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention that he was improperly or inequitably discharged . 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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