ex-AMEAR, USN

Current Discharge and Applicant’s Request

Application Received:  20080528
Characterization of Service Received:  OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19990622 - 19990630  		Active:  

Period of Service Under Review:
Date of Enlistment:  19990701	 Period of Enlistment:   Years   Extension	Date of Discharge:  20020404
Length of Service:   Years     Months   17 Days	Education Level:  	Age at Enlistment:  	AFQT:  53
Highest Rank/Rate:  AMEAN	  Evaluation Marks:  Performance:  2.4 (5)	Behavior:  2.0 (5)	OTA:  2.50
Awards and Decorations (per DD 214):  

Periods of UA: 20000108-20000110 (2 days)
                         20000225-20000308 (12 days)
                         20000308-20000315 (7 days)
                         20000710-20000711 (1 day)

NJPs:  
20010411:  Article 86 (UA)
                   Awarded: CCU FOR 30 DAYS  Suspended:    [Extracted from Evaluation Report & Counseling 
                                    Record dtd 20010514].

SCMs:  

SPCMs:  
20020308:  Article 86 (UA)
                   Article 92 (Failure to obey an order or regulation)
                   Article 107 (False official statement)
                   Article 134 (General article)
                       Sentence:  RIR, CONF FOR 45 DAYS [Extracted from Evaluation Report & Counseling Record dtd        
                                       20020404].

CC:  

Retention Warnings:  

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
           
Related to Post-Service Period (cont):	

Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):   

		- Photos
Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, 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.

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, Articles 86, 92, 107 and 134.

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

Applicant’s Issues

1.  Desires to reenlist in the US Army.
2.  Youth and Immaturity.
3.  Unjust punishment.
4.  Post service conduct.

Decision

Date:  20081009		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (PATTERN OF MISCONDUCT).

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning  s, regarding .

:  ()  .  The Applicant claims his actions were a result of his youth and immaturity.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s service was marred by a NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA) and by a SPCM for violations of Article 86 (UA); Article 92 (Failure to obey an order or regulation); Article 107 (False official statement); and Article 134 (General article, specifics NFIR).  These violations are serious in nature and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a special or general court-martial.  While the Applicant did receive a SPCM, he was not awarded a punitive discharge. 

The Applicant may believe his youth and immaturity were the cause of his misconduct, however a review indicates he was 22 years old, married and already a father when he enlisted in the US Navy; 24 years old at the time of his NJP, and over 25 when he was the subject of a SPCM for his violations of the USMC:  He was much older and had more life experiences than the average recruit.  As such, more was expected of him.  The Applicant states marital problems caused his misconduct.  He does not provide documentary evidence he used his chain of command, chaplain, or family services to assist him with any family crises or situation.  His misconduct and follow on actions to avoid being charged with missing muster were willful and deliberate.  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.  On his last evaluation, his Senior Rater states, the Applicant “has total disrespect towards authority  . . has been a burden to the command as a whole . . . shows little to no remorse for his actions or the problems that he has imposed upon the command.  Member is unfit to wear the uniform and has no potential for future Military Service.”  

The Applicant has requested a characterization upgrade to “General (Under Honorable Conditions)”.  For the edification of the Applicant, a “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  An “Under Other Than Honorable Conditions” is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member.  The Board acknowledges the Applicant’s misconduct demonstrated a significant departure from the conduct expected of a Sailor and the awarded “Under Other Than Honorable Conditions” characterization was appropriate.  The Board determined an upgrade would be inappropriate. 

:  (Equity)  .  The Applicant states his level of unsatisfactory performance did not rate an “Under Other Than Honorable Conditions” discharge.  The Applicant claims the penalty outweighed his crime and his record of 

service deserved a better discharge.  The Board 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.  There is credible evidence in the record that the Applicant consistently violated the UCMJ and Naval Service values of honor, courage, and commitment.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant provided no documentation to demonstrate the command violated established Naval procedures or policies in processing his discharge.  As stated in Issue 2, the Applicant’s record of service was marred by an NJP and a SPCM for which he was awarded a reduction in rank to E-1 and 45 days confinement in the USMC Quantico brig and subsequently received an “Under Other Than Honorable Conditions” discharge.  The Board determined an upgrade would be inappropriate.   

Issue 4:  (Equity)  RELIEF NOT WARRANTED.  The Applicant requested an upgrade based on his post service record.  He is married to a different woman and is raising her three children, one of which is severely handicapped.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in his civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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 company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements.  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 conduct mitigates the reason for the characterization of discharge. 

The Applicant provided limited documentation of his post service accomplishments.  He submitted only two letters of recommendation and pictures of his fiancée and her children.  Although the pictures are lovely, the Applicant's efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge and an upgrade would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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