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NAVY | DRB | 2013_Navy | ND1301664
Original file (ND1301664.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20130820
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)        2004 0 609 - 2 0050601     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050602     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070319      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
 Education Level:        AFQT: 43
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 1.70

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20060613 :       Art icle N ot Found in Record [Extracted from NAVPERS 1616 /26 covering period from 06JUL16 to 06DEC04]
         Awarded : NFIR Susp ended: (Vacated on 20061204)

- 20061204 :      Article 80 (Attempts)
         Article 81 (Conspiracy)
         Article (False official statements)
         Article 130 (Housebreaking)
         Awarded: Suspended:

- 20070112 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: 20061221
         Specification 2: 20070110
         Awarded : Susp ended:

S CM :    SPCM:

CIVIL ARREST:

- 20060601 :       Charges: Driving While Intoxicated , BAC .12

C C :

- 20060714 :       Offense: Driving While Intoxicated, BAC .12
         Sentence : Driver’s license suspended for one year, attend Alcohol Safety Action Program, Fines and Fees

Retention Warning Counseling :

- 20050715 :       For numerous negative entries on your Recruit Personnel Data Record (Hard Card) to include: F ailure to obey the rules and regulation s at Recruit Training Command, substandard performance, and overall lack of military bearing.
- 20060531 :       For violation of UCMJ Article 86 - Absence without leave. Violation of UCMJ Article 91 - Insubordinate conduct toward a noncommissioned officer or petty officer ( t wo counts). Violation of UCMJ Article 92 - Failure to obey orders or regulations ( 6 counts). Violation of UCMJ Article 107 - False official statements. Violation of UCMJ Article 111 - Drunken or reckless operation of a vehicle.

- 20060613 :       For driving under the influence .

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, 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:                  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 11, effective 26 April 2005 until 19 May 2008, 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 receive service benefits .
2.       The Applicant contends he had 22 months of good conduct.
3.       Applicant contends he was suffering from mental health issues that were not addressed by his command.
4.       The Applicant contends his misconduct was the result of feeling misled over alleged misrepresentations by his recruiter.
5.       The Applicant contends he was fraudulently charged by unlawful and loyal police officers .

Decision

Date : 20 1 4 022 7             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 80 ( Attempts ), Article 81 (Conspiracy), Article 92 (Failure to obey order or regulation, two specifications), Article 107 ( False official statement ), and Article 130 ( Housebreaking) , one civil arres t for driving while intoxicated , and one civil conviction for driving while intoxicated. Based on the offenses committed by the Applicant, command administratively processed for separation . The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, per the Applicant ’ s DD Form 214, the Separation Code HKA indicates the Applicant waived his right to an administrative board.

: (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 he had 22 months of good conduct. The Applicant’s record of service shows he received multiple retention warning counseling statements and nonjudicial punishments for misconduct and disobedience starting from his initial entry training and culminating with his discharge. 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, 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.

: (Decisional) ( ) . Applicant contends he was suffering from mental health issues that were not being addressed by his command. The Applicant’s 09 June 2004 signed application for enlistment disclosed a one-time counseling at the time of his parent’s divorce with good results. The evidence provided by the Applicant shows he participated in extensive and regularly scheduled psychotherapy sessions as early as 199 2 and an inpatient mental health intervention at the Christ Hospital and Medical Center Psychiatry and Substance Abuse Services Ward . The NDRB found that the documentation and statements provided for review show that the Applicant deliberately misrepresented his mental health condition and needs during the enlistment process, including the omission or concealment of facts , which, if

known at the time , would have reasonably been expected to preclude, postpone, or otherwise affect the Applicant ’s eligibility for enlistment or induction. 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 servicemembers who undergo personal or mental health 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. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his misconduct was the result of feeling misled over alleged misrepresentations by his recruiter. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The evidence in the record shows the Applicant signed paperwork subsequent to the documents he provided that clearly demonstrate there was no misrepresentation by his recruiter. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.
5 : (Decisional) ( ) . The Applicant contends he was fraudulently charged by unlawful and loyal police officers. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board. 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 a trial or 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, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. 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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