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NAVY | DRB | 2013_Navy | ND1301800
Original file (ND1301800.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20130910
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)        20020918 - 20021008     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021009     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040610      Highest Rank/Rate: SA
Length of Service: Y ear( s ) M onth( s ) 2 D a y ( s )
 Education Level:        AFQT: 67
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.84

Awards and Decorations ( per DD 214):      Rifle Pistol

Period of UA : 2004040 4 - 20040420 , 17 days

NJP :

- 20040112 :      Article (Failure to obey order or regulation)
         Awarded: Suspended: [Vacated on 20040510]

- 20040510 :      Article (Absence without leave)
         Article (Missing movement)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20040112 :       For violation of the UCMJ, Article 92.

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        The Applicant seeks to become a firefighter or to reenlist .
2 .       The Applicant contends the evidence at his Nonjudicial Punishment ( NJP ) was altered, false , and biased .
3.       The Applicant contends he was never given a fair chance or representation against the charges and allegations.
4.       The Applicant contends he would have appealed if properly given the chance.
5 .       The Applicant contends his life was threatened by commissioned officers and enlisted personnel.
6.       The Applicant contends he did not have a Pattern of Misconduct.
Decision

Date : 20140403             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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) , Article 87 (Missing movement), and Article 92 (Failure to obey order or regulation). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant seeks to become a firefighter or reenlist. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. Also, 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 Board 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.
Issues 2-4 : (Decisional) ( ) . The Applicant contends the evidence at his NJP was altered, false , and biased. The Applicant also contends he was never given a fair chance or representation against the charges and allegations. He further contends he would have appealed if properly given the chance. After the Applicant’s first NJP in January 2004, he acknowledged his rights to appeal the NJP and indicated, in writing, that he intended to file an appeal. An appeal for his first NJP was not found in the record. For his second NJP, the Applicant contends that he remembers being notified of violating Article s 86 and 87, but he does not remember being notified of violating Article 134 (Adultery) nor does he remember seeing an additional document that contains an alleged statement he made about becoming involved with a married woman. A review of the Applicant’s records shows that on 28 April 2004, the Applicant’s commanding officer (CO) directed the Chief Master-at-Arms to conduct an investigation into the allegation that the Applicant was personally involved with a married woman (Page 10 of 13 submitted by the Applicant). The Applicant was not required to view or sign this document; it was simply an order from the CO to the MAC to investigate an allegation. On 29 April 2004, the Chief Master-at-Arms notified the Applicant that he was suspected of violating UCMJ Articles 86, 87, and 134 (Page 8 of 13 submitted by the Applicant). The Applicant acknowledged, in writing, all of his rights and signed the document. On 10 May 2004, the Applicant’s CO found the Applicant guilty of violating UCMJ Articles 86 and 87 at Captain’s Mast (NJP). Following the NJP, the Applicant signed a document that detailed his rights to appeal his NJP of 10 May 2004, and he indicated with his initials

that he did not intend to file an appeal. After his second NJP, the Applicant’s CO determined that he was no longer fit to serve and notified the Applicant, in writing on 11 May 2004, that he was being processed for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). The Applicant acknowledged this notification, in writing, and elected to waive his rights to meet with qualified counsel, to submit a statement to the Separation Authority, and to appear before an administrative separation board. On 3 June 2004, the Separation Authority (Commander, Cruiser-Destroyer Group Three), after reviewing the facts of the case, ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct). T here is nothing in the record, nor did the Applicant provide any evidence, to show that his CO improperly found him guilty based on rumors and false or altered information. Further, the record clearly shows the Applicant was afforded all of his rights due to him during his two NJPs and administrative separation processing, and he signed multiple documents acknowledging these rights. He was also provided ample opportunities to refute the charges at his NJPs and to present his case for retention or mitigation at an administrative separation board. Relief denied.

5: (Decisional) ( ) . The Applicant contends his life was threatened by commissioned officers and enlisted personnel. The NDRB is not an investigative body, and allegations of communicating threats should be made to an appropriate law enforcement organization or the Naval Inspector General’s Office. However, the record contained no evidence of any threats from commissioned officers or enlisted personnel, and the Applicant provided no evidence of any threats. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.
Issue 6: (Decisional) (Propriety /Equity) RELIEF NOT WARRANTED. The Applicant contends he did not have a Pattern of Misconduct. Per 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, a m ember may be separated when during the current enlistment they have (1) two or more NJPs, courts-martial, or civil convictions (or combination thereof) and (2) violated a Page 13 retention counseling warning. A member must have violated a Page 13 warning prior to processing. During the Applicant’s 1 year and 8 months of service, he had an NJP - Retention warning - NJP, thus meeting the requirements for administrative separation processing for a Pattern of Misconduct. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. After a thorough review of the records, the NDRB determined his discharge was warranted, 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.

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 .


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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