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NAVY | DRB | 2014_Navy | ND1400257

Original file (ND1400257.rtf) Auto-classification: Denied

ex-PRAA, USN

Current Discharge and Applicant’s Request

Application Received: 20131126

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       BEST INTEREST OF THE SERVICE

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20080710 - 20090112     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090113     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120511      Highest Rank/Rate: PR3
Length of Service: Y ear( s ) M onth( s ) 29 D a y ( s )
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.4 ( 7 )      Behavior: 2.4 ( 7 )        OTA: 3.12

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20111118 :      Article (False official statements)
         Article ( Assault )
         Article (General A rticle - drunk and disorderly)
         Awarded: Suspended: [Extracted from Commanding Officer’s letter dated 20120510]

- 20120406 :      Article (Failure to obey order or regulation)
         Awarded : Susp ended: [Extracted from Commanding Officer’s letter dated 20120510]

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20111123 :       For violations of Article s 107, 128, and 134.

Administrative Corrections to the Applicant’s DD 214

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

         “ 20 09 01 13 ”
         “ 0 3 03 29 ”

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 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 contends there was neither any evidence to substantiate the second misconduct event nor was there specificity in the charges that resulted in his separation for a pattern of misconduct .
2.       The Applicant contends he was sent to Captain’s Mast without the opportunity to exercise his right to c ourt- m artial and without consulting his defense attorney .
3.       The Applicant contends his record of service warrants an upgrade.
4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date : 20 1 4 0605    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 standards of equity and propriety. 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 92 ( Failure to obey order or regulation , one specific ation ), Article 107 ( False official statement , one specification ), Article 128 ( Assault , one specification), and Article 134 ( General A rticle, one specification ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived right to consult with a qualified counsel.

: (Decisional) ( ) . The Applicant contends there was neither any evidence to substantiate the second misconduct event nor was there specificity in the charges that resulted in his separation for a pattern of misconduct . 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. T he Applicant’s record of service contains multiple signed NAVPERS 1070/613 administrative remarks concerning liberty behavior and the consumption of alcohol. One such entry signed by the Applicant on 29 August 2009 states , “Although it is impossible to list each example of when and how you must take action to prevent inappropriate behavior by your liberty buddy, in particular, you must take reasonable measures to prevent the excessive consumption of alcohol, altercations with local citizens, and violations of local laws or the UCMJ.” This notification goes on to state that S ailors are responsible for “Monitoring the alcohol consumption of your liberty buddy” and that “Failure to exercise reasonable care and take positive action as described above to ensure the safety, welfare and appropriate conduct of your liberty buddy is a violation of this order.” This signed notification concludes by stating “Under the authority of the Uniform Code of Military Justice (UCMJ), Title 10, United States Code, Sections 801-940, and U.S. Navy Regulations, 1990, this order is punitive in nature. Violation of this general order may result in disciplinary measures, including action under the UCMJ. ” Finally, the evidence of record clearly shows that when notified of separation proceedings , the Applicant freely elected to waive his right to consult with counsel. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The NDRB determined he was provided full due process, met the requirements to be administratively separated for a Pattern of Misconduct, and was equitably discharged. Relief denied.

: (Decisional) ( ) . The Applicant contends he was sent to Captain’s Mast without the opportunity to exercise his right to c ourt- m artial and without consulting his defense attorney. There is nothing in the record, nor did the Applicant provide any evidence, that he was denied the opportunity to request a court-martial or was denied access to his defense attorney. Further, when notified of administrative separation processing, the Applicant waived his right to consult with a qualified counsel. 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. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his record of service warrants an upgrade. With an NJP - Page 13 retention warning - NJP, the Applicant met the requirements for administrative separation for a Pattern of Misconduct. Since t he 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’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for 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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NAVY | DRB | 2014_Navy | ND1400257

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