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NAVY | DRB | 2013_Navy | ND1301784

Original file (ND1301784.rtf) Auto-classification: Denied

ex-GSMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20130905

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)        20050927 - 20060212     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060213     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100730      Highest Rank/Rate: GSM3
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.53

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

Periods of UA /C ONF :

NJP :

- 20091016 :      Article (Disrespect toward a superior commissioned officer)
         Article (Assaulting or wil l fully disobeying superior commissioned officer)
         Awarded: Suspended:

- 20100708 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    SPCM:    CC:

CIVIL ARREST:

- 20100610 :       Charges: C arrying a concealed firearm; trespass and does act s that exposes animals, crops, property to waste, destruction, freedom.

Retention Warning Counseling :

- 20060309 :       For numerous negative entries on your Recruit Personnel Data Record (Hard Card) to include: failure to adapt, lack of motivation, constant disruption in the division, lack of respect toward your Recruit Division Commanders, failure to obey the rules and regulations at Recruit Training Command, substandard performance, and overall lack of military bearing.

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 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 wants his RE-code changed.
2.       The Applicant contends he is innocent of the Article 86 violation.
3.       The Applicant contends he only had one issue , and the second issue where all the charges were dropped makes the pattern of misconduct improper.

Decision

Date : 20140320             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 NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) , Article 89 (Disrespect toward a superior commissioned officer) , Article 90 (Assaulting or wil l fully disobeying superior commissioned officer) , and Article 92 (Failure to obey order or regulation) . Based on the offense s committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s 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 or a General Court-Martial Convening Authority review . However, the Applicant has a separation code of HKA on his DD Form 214, which indicates he waived his right to appear before an administrative board .

: (Nondecisional) The Applicant wants his RE-code changed. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends he is innocent of the Article 86 violation. The Applicant submitted a civilian court document from 02 July 2010 . He contends he had permission from his command to attend this court hearing , and his Article 86 violation stems from attending court on this date. The record of evidence indicates the Applicant waived his right to 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 an administrative separation board, he would have had the opportunity to mount a defense against the charges. The evidence submitted by the Applicant does not demonstrate that he had permission or that he is innocent of violating Article 86. T herefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs that the Applicant’s conviction at NJP for violation of Article 86 was proper. Further, the Applicant was also found guilty of violating Article 92 at this same (second) NJP . Relief denied.

: (Decisional) ( ) . The Applicant contends he only had one issue , and the second issue where all the charges were dropped makes the pattern of misconduct improper. The Applicant submitted a Disposition Notice dated 02 July 2010 that shows the assistant state attorney declined to prosecute the Applicant of the charges for carrying a concealed firearm , trespass , and does act s that exposes animals, crops, property to wast e , destruction, freedom . However, with other misconduct during the Applicant’s enlistment, he met the requirements for administrative separation for a pattern of misconduct. T he record clearly shows the Applicant had a NAVPERS 1070/613 (Page 13) retention warning from

Recruit Training and was subsequently found guilty at two separate NJPs of violating UCMJ articles . Therefore, the NDRB determined the Applicant’s civilian charges were immaterial to the criteria set forth in Naval Military Personnel Manual Article 1910-140 (Pattern of Misconduct) and further determined his discharge was proper and equitable. 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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NAVY | DRB | 2013_Navy | ND1301784

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