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NAVY | DRB | 2014_Navy | ND1401069
Original file (ND1401069.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20140308
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)        20010629 - 20011021     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20011022     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050218      Highest Rank/Rate: AN
Length of Service: Year(s) Month(s) 27 D ay(s)
 Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.25

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20050126 :      Article (Making, drawing, or uttering check, draft, or order without sufficient funds)
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 20050126 :      For violation of Article 123a

NDRB Documentary Review Conducted (date):        20110415
NDRB Documentary Review Docket Number:   ND10-00983
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.







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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .




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

Applicant’s Issues

 1. The Applicant contends that one infraction does not warrant for a P attern of M isconduct.
2. The Applicant contends that she was wrongfully discharged.
3 . The Applicant contends that she should not have been notified for a P ersonality D isorder.
 4. The Applicant contends that there were felonies deleted from her background and this should also erase her NJP that
contributed to her discharge.  

Decision

Date: 20 1 4 1023             Location: Washington D.C .        R epresentation :

Pending results of hearing
By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion
Pending results of hearing
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 discharge 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) warnings, and for o f the Uniform Code of Military Justice (UCMJ): Article 123a ( Making, drawing, or uttering check, draft, or order without sufficient funds , 1 specific ation ) . Although not listed in her official record, the Applicant did reveal that she had at least one other NJP during her personal hearing. Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, but waived her right to submit a written statement, and request a General Court-Martial Convening Authority review.

: (Decisional) ( ) . The Applicant contends that one infraction does not warrant a P attern of M isconduct and that she was wrongfully discharged. The government assumes 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 her issues. The Applicant petitioned to the NDRB for an upgrade through a documentary review in March 2010 stat ing that her only charge was that she “was sent to Captains Mast” for violation of UCMJ A rticle 92. Based upon an NJP listed in the official record prior to the Article 92, a retention warning, and the statements made by the Applicant , the docket review found that the discharge was proper and equitable. Although the Applicant stated that she went to NJP on her DD FORM 293 in 2010 for violation of Article 92 , during her personal hearing, she submitted documentary evidence showing that she requested a trial by court-martial for the Article 92 violation that coincided with being the same day that she was notified for separation. She further stated during the personal hearing that she went to NJP and refused it because the punishment rendered was too harsh and she henceforth requested a trial by court-martial . The Applicant also admitted to at least one other NJP that is not in the official record in which she was given 30 days in the Correctional Custody Unit (CCU). The Applicant’s Commanding Officer’s Administrative Remarks were not in the official record to clear up the ambiguity. However, there is clear evidence in the record that the Applicant did have a set pattern of failure to pay just debts. The Applicant admitted to being administratively warned by her Commanding Officer to pay her just debt s prior to the Article 92 charges resulting from offenses on or about 20050201. There are not any specifics to the charges, but the record does show that a preliminary investigation to the charges was conducted.

MILPERSMAN 1910-140 current at the time of discharge of the Applicant states under the Policy section that: “Members may be separated when during the current enlistment they have a set pattern of failure to pay just debts.” Regardless, of the ambiguity in the record, the NDRB found that the Applicant did meet the criteria for P attern of M isconduct. Furthermore, if the Applicant felt that her discharge was improper, she could have submitted a statement for consideration to the Separation Authority. When notified on 20050215for administrative separation processing, the Applicant exercised her right to consult with a lawyer but waived her right to submit statements. If the Applicant or counsel believed there were mitigating circumstances, it was the Applicant’s obligation to contest those charges at the time they were made. Based upon the evidence of record, along with written and verbally communicated evidence from the Applicant, the NDRB found no improprieties in the Applicant’s discharge processing. Relief denied.
: (Decisional) ( ) . The Applicant contends that she should not have been notified for a P ersonality D isorder. 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. 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. Although the command notified the Applicant of both Pattern of Misconduct and Personality Disorder, the Applicant was discharged for Pattern of Misconduct. If the Applicant felt that she did not meet the criteria to be separated for Personality Disorder and that was the reason for discharge, she could have addressed it with counsel while in-service and peti tio ned to the NDRB for relief. However, the Applicant was not discharged for Personality Disorder; therefore , her contention does not serve as a basis in which relief can be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends that there were felonies deleted from her background and this should also erase her NJP that contributed to her discharge. The Applicant submitted documentary evidence showing that she had two entries: Charge 01. Article 123, UCMJ (forgery), Charge 02. Article 121, UCMJ (larceny/personal) dated 20030605 and Charge 01. Article 121, UCMJ (larceny/personal) dated 20050204, deleted from her record. The record does have the evidence from the charges that were deleted from the 20030605 report date. However, t he record of service is not clear of the specifics of the NJP held on 20050126 and whether or not it is based on charges from another investigation. However , NJP is separate from any charges that would show up on the Applicant ’s civilian criminal record. NCIS may have conducted an investigation of an alleged crime but it doesn’t mean that the findings of the investigation would lead to any adjudication. Furthermore, the deletion of the charge in 2005 does not state that it is due to the Applicant’s innocence , but due to the entry was “submitted prematurely by USN MIL POLICE/NAS OAK HARBOR WA.” The NDRB conducted an exhaustive review of the Applicant’s record and did not find any improprieties to her adjudicated charges. 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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