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NAVY | DRB | 2013_Navy | ND1301530
Original file (ND1301530.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20130710
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)        20010519 - 20010529     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010530     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030721      Highest Rank/Rate: AA
Length of Service: Year(s) Month(s) 22 D ay(s)
 Education Level:        AFQT: 33
Evaluation M arks:         Performance: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of C ONF :

NJP :

- 2002 0328 :      Article (Absence without leave , 3 s pecifications)
         Specification 1: Did on or about 20011224, without authority, absent himself from his unit, to wit: US Naval Ship and did remain so absent until on or about 20011225, 1 day.
         Specification 2: Did on or about 20020215, without authority, absent himself from his unit, to wit: US Naval Ship and did remain so absent until on or about 20020218, 3 days.
         Specification 3: Did on or about 20020223, without authority, absent himself from his unit, to wit: US Naval Ship and did remain so absent until on or about 20020227, 4 days.
          Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 3 s pecifications )
         Specification 1: Did on or about 20011207, having received a lawful order from a First Class Petty Officer, then known by SNM to be a Petty Officer, to fix his cover two times, an order which it was his duty obey, did on board a US Naval Ship located at sea, willfully disobey the same.
         Specification 2: Did on or about 20011207, having received a lawful order from a First Class Petty Officer, then known by SNM to be a Petty Officer, to accompany him to the Precinct, an order which it was his duty obey, did on board a US Naval Ship located at sea, willfully disobey the same.
         Specification 3: Did on or about 20011207, was disrespectful in language toward a Third Class Petty Officer, then know by SNM to be a Petty Officer, who was then in the execution of his office, by saying to him, “I’m going to kick your a_ ,” or words to that effect.
         Article (Assault , did on or about 20011026, on board US Navy Ship located as sea, assault an Airman, by poking, shoving, and placing his hands around his neck )
         Awarded: Suspended:





- 2002 0424 :      Article (Absence without leave , 3 s pecifications )
         Specification 1: Did on or about 2002 0417 , without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1800 Restriction Muster.
         Specification 2: Did on or about 2002 0420 , without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1 6 00 Restriction Muster.
          Specification 3: Did on or about 2002 0421 , without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1800 Restriction Muster.
          Awarded: Suspended:

- 20020830 :      Article (Absence without leave , did on or about 1000, 20020817, without authority, absent himself from his unit and did remain so absent until on or about 0715 20020819, 2 days )
         Awarded: Suspended:

- 20021113 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ; on or about 20021026, was disrespectful in language toward a First Class Petty Officer, then known by SNM to be a First Class Petty Officer, who was then in the execution of his officer, by saying to him, “Get out of my face. I am not going to do it. I would do it when and if I felt li ke it” o r words to that effect )
         Awarded: Suspended: ( FOP vacated 20021126)

- 20021126 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 s pecifications )
         Specification 1: On or about 20021119, was disrespectful in language toward a petty officer second class, who was then in the execution of his office, by saying to him, “I do not care about what you or MA1 have to say” or words to that effect
         Specification 2: On or about 20021119, was disrespectful in language toward a petty officer second class, who was then in the execution of his office, by saying to him, “I do not care about what you or MA2 have to say” or words to that effect
          Article (Failure to obey order or regulation ; having knowledge of a lawful order issued by the Commanding Officer, to wit: Restriction Order dated 20021113, an order which it was his duty to obey, did, on board the ship located at sea, on or about 20021119, fail to obey the same by wrongfully mustering in an unclean uniform)
         Awarded: Suspended: ( FOP vacated 20021202)

- 20021202 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; having received a lawful order by a third class petty officer, then known by SNM to be a third class petty officer, to shave his upper lip, an order which it was his duty to obey, did on board ship located at sea, on or about 20021209, willfully disobey the same)
          Awarded: Suspended:

- 200 30105 :      Article (Absence without leave , 3 s pecifications )
         Specification 1: Did on or about 20021208, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 Restriction Muster.
         Specification 2: Did on or about 20021210, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1800 Restriction Muster.
         Specification 3: Did on or about 20021218, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 2130 Restriction Muster.
         Article (Impersonating a petty officer; did on or about 20021223, wrongfully and willfully impersonate a petty officer of the Navy by calling 72 nd Precinct identifying himself to be a Petty Officer First Class, with intent to defraud a cert a in person or organization in a certain manner)
          Awarded: Suspended:

- 20030623 :      Article (Absence without leave; did on or about 20030517, without authority, absent himself from his place of duty at which he was required to be and did remain so until on or about 20030518 , 1 day )
          Awarded: Suspended:

S CM :    S PCM:    C C :

Retention Warning Counseling:

- 20020328 :      For Article 86 (Absence without leave)

Administrative Corrections to the Applicant’s DD 214

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

          “ MILPERSMAN 1910-140 ”
         “ PATTERN OF MISCONDUCT ”
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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), 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 would like an upgrade to help his life and to support his family.
 2 .       The Applicant contends he had family issues that hit him hard, and he received no help from his command.

Decision

Date: 20 1 4 0220             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, 11 specifications) , Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 6 specifications ), Article 92 ( Failure to obey order or regulation, 1 specification), Article 128 (Assault, 1 specification), and Article 134 (Impersonating a petty officer , 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue 1: (Nondecisional) The Applicant would like an upgrade to help his life and to support his family. The NDRB has no authority to upgrade a discharge to help an Applicant’s life or to help him support his family. The NDRB is only authorized to review the propriety and equity of a discharge.
: (Decisional) ( ) . The Applicant contends he had family issues that hit him hard, and he received no help from his command. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his 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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