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NAVY | DRB | 2013_Navy | ND1301637
Original file (ND1301637.rtf) Auto-classification: Denied

ex-AOAR, USN
Current Discharge and Applicant’s Request
Application Received: 20130814
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)        20050510 - 20050720     Active:   2005 0721 - 20090308

Period of Service Under Review:
Date of Current Enlistment: 20090309     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100514      Highest Rank/Rate: AO3
Length of Service: Y ear( s ) M onth( s ) 06 D a y ( s )
 Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.09

Awards and Decorations ( per DD 214):      (2) (2)

Periods of UA /C ONF :

NJP :
- 20090917 :      Article ( Property other than military property of the United States - waste, spoilage, or destruction ; did on or about 20090830, willfully damage a wall and door at a civilian apartment building, the amount of said damage bei ng in the sum of about $ 1,000 . 00 )
         Article (Disorderly conduct, drunkenness ; was on or about 20090830 drunk and disorderly)
         Awarded: Suspended:

- 2009110 5 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ; did on or about 20091104 was disrespectful in language toward a First Class Petty Officer, then known to be a superior petty officer, who was then in the execution of his office, by saying to him, “I don’t care if you’re an E-6, I’m going home,” or words to that effect )
         Arti cle (Failure to obey order or regulation; did violate a lawful general regulation , having knowledge of a lawful order issued by the Commanding Officer during Non-Judicial Punishment on 20090917, not to commit any further misconduct, an order which it was his duty to obey, did on or about 20091104 fail to obey the same by wrongfully committing misconduct )
         Article (Disorderly conduct, drunkenness; was on board a US Navy ship on or about 20091104, drunk and disorderly)
         Awarded : Susp ended:

- 20100114 :      Article (Failure to obey order or regulation; did violate a lawful general regulation, to wit: OPNAVINST 5350.4D by wrongfully using a controlled substance analog, S pice. )
         Article (False official statement; did make to a n Ensign an official statement to wit: that he had never smoked S pice, which was false in that he had smoked S pice, and was then known by him to be false )
         Article (Briber y; did wrongfully offer to a USN Second Class Petty Officer, the sum of $ 1,000.00, with intent to influence the actions of said Second Class Petty Officer, with respect to change the statement he had made to the Master at Arms office, to wit: to say that he had lied , that SNM had not smoked S pice )
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20090921 :      For Article 109 (Property other than military property of the United States - waste, spoilage, or destruction) and Article 134 (Disorderly conduct, drunkenness)

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 enhance employment opportunities and educational opportunities.
2. The Applicant seeks an upgrade to receive service benefits.
3. The Applicant contends his in-service conduct warrants an upgrade to Honorable.

Decision

Date: 20 1 4 0312             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 in his current enlistment included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer, 1 specification ), Article 92 ( Failure to obey order or regulation , 2 specifications ), Article 107 (False official statement, 1 specification), Article 109 ( Propert y other than military property of the United States - waste, spoilage, or destruction , 1 specification ), and Article 134 ( General A rticle , 3 specifications ) . 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 and request an administrative board. T he Applicant waived right to submit a written statement.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities and 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.

: (Nondecisional) The Applicant seeks an upgrade to receive 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.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable. The Applicant received an Honorable characterization of service for his first enlistment from July 2005 to March 2009. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received a retention warning and was found guilty of multiple offenses at three NJPs. 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 of service in his second enlistment , 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. However, the Applicant’s administrative separation board 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 . The NDRB is not authorized to change a cha racterization of service to a more unfavorable level, therefore, the awarded characterization will remain General (Under Honorable Conditions). 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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