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NAVY | DRB | 2014_Navy | ND1400061
Original file (ND1400061.rtf) Auto-classification: Denied

ex-RPSR, USN
Current Discharge and Applicant’s Request
Application Received: 20131011
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:       or uncharacterized
         Narrative Reason change to:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20120507 - 20120710     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20120711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130321      Highest Rank/Rate: RPSR
Length of Service: Y ear( s ) M onth( s ) 11 D a y ( s )
 Education Level:        AFQT: 49
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      DMSM

Periods of C ONF :

NJP :

- 20121206 :      Article (Absence without leave - wrongfully failing to report for 2030 duty section muster )
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wearing an earring in uniform/onboard military installation
         Specification 2: Wrongfully failing to refrain from possession of personal electronic devices during training hours
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL ”

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 36, effective 18 August 2011 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 .



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

Applicant’s Issues

 1.        The Applicant seeks a change in his RE-code to reenlist into the Armed Forces .
2.       The Applicant contends he was separated without being told why , and he should have been discharged as an entry level separation .
3.       The Applicant contends the characterization of his discharge is unjust and too harsh .
 4.       The Applicant contends youth and immaturity were contributing factors in his misconduct .
5.       The Applicant contends his post-service conduct is worthy of an upgrade .

Decision

Date : 20 1 4 0515             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 for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave ) and Article 92 ( Failure to obey order or regulation , 2 specific ation s ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When twice notified of administrative separation processing using the procedure on 13 December 2012 and 07 February 2013 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request a General Court-Mar tial Convening Authority review .

: (Nondecisional) The Applicant seeks a change in his RE-code to reenlist into the Armed Forces. 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 was separated without being told why , and he should have been discharged as an entry level separation . The Applicant’s service record shows the Applicant was the subject of a Preliminary Inquiry on 28 November 201 2 as a result of poor conduct and performance. The inquiry found that the Applicant had failed to adapt to the requirements of the Navy while attending Religious Program Specialist training. On 6 December 2012, the Applicant’s commanding officer found him guilty at NJP of violating UCMJ Articles 86 and 92 for offenses on 7, 14, 16, and 19 November 2012 . On 13 December 2012, his command notified him of administrative separation processing for Entry Level Performance and Conduct due to his violation of UCMJ Articles 86 and 92. T he Applicant signed this notification and elected to exercise his rights to consult with a qualified counsel and to submit a written statement to the Separation Authority. On 11 January 2013, his commanding officer recommended to the Separation Authority (Commander, Navy Region Southeast) that the Applicant receive an Uncharacterized entry level separation for Entry Level Performance and Conduct. Before separation could be effected, the record indicates the Applicant committed additional misconduct that resulted in his commanding officer renotifying the Applicant on 7 February 2013 of administrative discharge processing for Misconduct (Serious Offense). On 7 February 2013, t he Applicant again elected to exercise all of his rights. On 1 March 2013, after reviewing the specifics of the case, the Separation Authority ordered the Applicant to be discharged Under Honorable Conditions (General) for Misconduct (Serious Offense). After a complete review of the records, the NDRB determined the Applicant received full due process, was afforded all applicable rights, and was aware of why he

was being discharged. An entry level separation is appropriate for those servicemembers who are notified of administrative discharge processing within 180 days of active service. While the Applicant’s first notification on 13 December 2012 was within the 180-day window, the second notification after further misconduct was past 180 days and was conducted properly. Relief denied.

: (Decisional) ( ) . The Applicant contends the characterization of his discharge is unjust and too harsh. The Applicant contends his discharge was inequitable , because it was based off of a single NJP for relatively minor offenses , including the wearing of an earring . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In accordance with the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Per Appendix 12 of the Manual for Courts-Martial, violation of UCMJ Article 92 is considered a serious offense that warrants a punitive discharge as the result of a special or general court-martial. The Applicant’s record contains numerous informal counselings while stationed at the Naval Chaplaincy School and Center for absence without leave, failure to obey orders or regulations, and insubordinate conduct. While the Applicant had a sole NJP, t he quality of his service was honest and faithful but significant negative aspects of his conduct and performance of duty outweighed the positive aspects of his service record. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Relief denied.
4 : (Decisional) ( ) . The Applicant contends youth and immaturity were contributing factors in his misconduct . While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of an upgrade . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Honorable Conditions (General). 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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