ex-AZAN, USN 

Current Discharge and Applicant’s Request

Application Received: 20090304
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:	USNR (DEP)	20020208 - 20020519  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020520	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060515	Highest Rank/Rate:  AZ3
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  45
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	  (2)    

Periods of UA/CONF:  

NJP:  
- 20030729:	Article 86 (UA)
	Awarded: CONF B&W 3 DAYS  Suspended:  

- 20031111:	Article 86 (NFIR)
	Article 92 (NFIR)
	Awarded:     Suspended:  

- 20060325:	Article 86 (Absent without leave)
	Article 92 (Dereliction of duty, disobeying a lawful order or regulation), 2 specifications
	Article 107 (False official statements)  
	Awarded:      Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20030729:	For violation of UCMJ, Articles 86

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

                    Other Documentation:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 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. Planned to reenlist. 
2. In-service performance.
3. Ability to serve was impaired by medical (Post Traumatic Stress Disorder) and family problems.
4. Punishment too severe and had almost completed tour.
5. Post-service conduct.

Decision

Date:  20090917	    Location:  Washington D.C.      Representation:  NATIONAL   
                                                                                                                                               ASSOCIATION FOR BLACK VETERANS

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

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 discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and three non-judicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absences (UAs) – 3 specifications), Article 92 (Dereliction of duty, disobeying a lawful order – 3 specifications,  and Article 107 (False official statement).  Based on the offenses committed by the Applicant,  command administratively processed  for separation due to a pattern of misconduct.  The presumption of regularity was applied in the absence of a complete administrative separation package or complete service record.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review.  However, the Applicant’s DD Form 214 indicates that he was separated based on a pattern of misconduct and assigned a separation code of 
“JKA” and was therefore not entitled to an administrative board.  

:  (Nondecisional) The Applicant is seeking an upgrade to Honorable and contends that he was planning to reenlist at the time of his discharge.  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 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 that his narrative reason should be changed to convenience of the government and his discharge upgraded based on his in-service performance.  He noted that he served in Operation Enduring Freedom, Operation Iraq Freedom, and supported the tsunami humanitarian relief efforts for Indonesia.  Additionally, the Applicant avers that his ability to serve was impaired by family problems; specifically, while in the process of going through a divorce, his child died.  The Applicant also indicated that he is being treated by the Department of Veterans Affairs (VA) for mental health, spinal cord and shoulder injuries and other injuries sustained while on active duty.  He submitted a letter from the VA of 7 October 2008 indicating that he has been receiving medical and mental health treatment at the clinic for over two years for post traumatic stress disorder and has a 100% disability rating connected to Operation Enduring Freedom and Operation Iraqi Freedom.  

Based on a review of the available evidence of records as previously discussed and the documentary evidence presented by the Applicant, the Board determined there was sufficient evidence to support a basis for discharge due to a pattern of misconduct and that considering the seriousness and frequency of the offenses committed by the Applicant, an upgrade to Honorable is not warranted.  Furthermore, the Board determined the Applicant’s in-service performance, medical and family problems did not mitigate the misconduct which resulted in his discharge.  The Applicant did not submit any evidence to prove that he was experiencing symptoms of PTSD while on active duty.  The Applicant’s medical records were unavailable for the Board to review.  The Applicant provides no documented information he informed his chain of command of family problems and did not receive the assistance, leave, or support he requested.  Additionally, the Applicant made no mention of, nor did he provide documented proof that he attempted to use any one of the numerous family support programs sponsored by or for military service members.  These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, and Navy medical health personnel all provide services to members of the military in times of need.  

Issue 4:  (Decisional) ()  .  The Applicant admits that he made some mistakes for which he was punished.  Nonetheless, he contends his discharge was too harsh and he had almost completed his tour at the time of separation from the military.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as Honorable.   A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant had 3 NJPs and one retention warning during this enlistment.  Some of the violations committed by the Applicant such as Article 92 and 107 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court-martial.  In regard to the allegations that the commanding officer‘s punishment was too severe, the Applicant has not presented any evidence nor does the records contain evidence which indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Therefore, the Board concluded that the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  

In regard the Applicant’s contention that his discharge was improper because he was four days from completing his tour.  The Board noted that the Applicant was enlisted for 4 years with an additional 24 month extension, and was required to complete another 24 month prior to leaving the Navy.  Based on a review of the evidence of record and evidence presented by the Applicant, the Board has determined that there was sufficient evidence to separate the Applicant due to a pattern of misconduct as discussed supra, and that his commanding officer acted within his authority in discharging the Applicant. 

Issue 5:  (Decisional) ()  .  The Applicant contends that since being discharged from the military he has been a good citizen.  He presented a criminal background check from the State of Florida and several character witness statements for the Board’s consideration.  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.  While the Board appreciates the Applicant’s post-service efforts, the Board determined the evidence of post-service conduct did not mitigate the misconduct which precipitated his discharge.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, 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, specifically the paragraphs titled Additional Reviews and Automatic Upgrades.

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), 2 Navy Annex, Washington, DC 20370-5100 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.

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.  

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