ex-SN, USN

Current Discharge and Applicant’s Request

Application Received:  20080819
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630620

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19921009 - 19930104  		Active:  

Period of Service Under Review:
Date of Enlistment:  19930105	 Period of Enlistment:   Years   Extension	Date of Discharge:  19950602
Length of Service: 2 Years   4 Months   27 Days	Education Level:  	Age at Enlistment:  	AFQT:  44
Highest Rank/Rate:  E-3	Evaluation Marks: Performance:  3.5(2)	Behavior:  2.8(2)	OTA:  3.0
Awards and Decorations (per DD 214):	Rifle  Pistol    

Periods of UA:  19940630 – 19940701 (1 day)
                          19940711 – 19940713 (2 days)
                          19940717 – 19940726 (9 days)
                          19940829 – 19940829 (0630-1700)
                          19940912 – 19940917 (5 days)

NJP:  
          - 19940804:  Article 86 (UA), 3 specifications
                               Awarded:  FOP RESTR EPD

- 19940926:  Article 86 (UA), 2 specifications
                     Awarded:   30 Days Correction Custody   Suspended: RIR

- 19950502:  Article 86 (UA)
                     Awarded:      Suspended:  

SCM:      SPCM:      CC:  

Retention Warnings:  

- 19940808:  For captain’s mast for unauthorized absence.

Types of Documents Submitted/reviewed

Related to Military Service:	
              DD 214:  	            Service/Medical Record:  		  Other Records:  
                                                   
		- Copy of Enlisted Performance Record dated 3 July 1993. 

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):    
- Copy of Applicant’s social security card  
- Copy of Order and Certificate of Name Change

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until 2 October 1996), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.  Was discharged despite recommendation to retain.
2.  Never received financial counseling by command.
3.  Post service conduct.

Decision

Date:  20081204		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  (Equity)  .  The Applicant states although he did receive negative comments in his performance evaluation report for the period 1 February 1994 to 31 January 1995, he was still recommended for retention.  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.  When the Applicant received his performance evaluation report on 17 February 1995, he had already received a retention warning for misconduct and was the subject of two NJP’s for violations of Uniform Code of Military Justice (UCMJ):  Article 86 (UA).  His third NJP for UA, which occurred on 2 May 1995, seems to have been the deciding act which changed his command’s retention recommendation from positive to negative  A review of available records reveals nothing to indicate the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Three NJP’s and one retention warning are sufficient documentation to support a ‘Pattern of Misconduct’ discharge, which is exactly what the command initiated and what the Applicant received based on his pattern of misconduct.  The Board determined the awarded discharge was appropriate and an upgrade based on the command’s initial recommendation to retain would be inappropriate. 

:  (Equity)  .  The Applicant claims his command never counseled him for his financial difficulties.  In the Enlisted Performance Evaluation Report for the period 1 February 1994 to 31 January 1995, the rater, who was a Navy Lieutenant Commander, wrote the Applicant is an average performer who’s “repeated personal financial difficulties are quickly becoming an administrative burden to the command.  He has repeatedly ignored command counseling to correct his financial difficulties.”  Based on this evaluation report it stands to reason the command did counsel the Applicant.  If the Applicant did not agree with the report, he could have submitted a rebuttal statement.  In block 44 of the report, the Applicant circles he has seen the report and does not wish to submit a statement:  This means he agreed with and accepted what was written concerning his performance by the Lieutenant Commander.  Aside from his personal statement, the Applicant provides no documentation to support his claim he was never counseled.  In the absence of statements from witnesses and based on the documented evidence in the performance evaluation report the Board determined the Applicant’s claim was without merit and the awarded discharge characterization was appropriate, an upgrade based on not receiving financial counseling by the command would be inappropriate. 

:  (Equity)  .  It has been over 13 years since the Applicant was discharged from the U. S. Navy.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall 
character.  Since the Applicant did not provide any post service documentation, the Board determined an upgrade at this time is not warranted based on post service accomplishments.

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 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 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