ex-ADAR, USN 

Current Discharge and Applicant’s Request

Application Received: 20090421
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 3630600 COMMISSION OF A SERIOUS OFFENSE.

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19930611 - 19930719  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19930720	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960711	Highest Rank/Rate:  ADAN
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  55
Evaluation Marks:	Performance:  3.6 (2)	Behavior:  3.6 (2)	OTA:  3.70

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  
- 19960202:	Article 95 (Escaping from custody)
	Article 111 (Drunken driving)
	Awarded:      Suspended:  

- 19960517:	Article 89 (Disrespect to a Superior Commissioned Officer)
	Article 95 (Resisting arrest)
	Article 128 (Assault)
	Article 134 (Drunk and disorderly)
	Awarded:      Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 19950607:	For failing to observe the financial responsibility policy of the department of Navy by not forming habits of thrift and by conducting your financial affairs in such a manner as to reflect discredit upon the naval service.  

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/To Representation:		From/To Congress member:	

                    Other Documentation:	

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 - COMMISSION OF A SERIOUS OFFENSE.

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, Article 89, 95, and 111.

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

Applicant’s Issues

1. Decisional issues.  The Applicant claims he was give improper legal advice by counsel.
2.  Decisional issue.  The Applicant states misconduct was mitigated by youth, immaturity and family problems.
3.  Decisional issue.  The Applicant feels since the offense occurred 10 years ago, his discharge should be upgraded.
4.  Decisional issue.  The Applicant desires post service consideration.

Decision

Date:  20091217    	Location:  Washington D.C.	Representation:  

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 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) warnings and two  for  of the Uniform Code of Military Justice (UCMJ):  Article 95 (Escaping from custody),
Article 111 (Drunken driving) and Article 89 (Disrespect to a superior commissioned officer).  The second NJP was for violations of UCMJ Article 95 (Resisting arrest), Article 128 (Assault), and Article 134 (Drunk and disorderly).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified for administrative separation processing, the Applicant waived  rights to consult with qualified counsel, submit a written statement, and request an administrative board.

:  (Decisional) ()  .  The Applicant states he was mislead by counsel and thought he would be getting a general (under honorable conditions) characterization of service.  A review of his military records revealed that on 29 May 1996, the Applicant signed a Statement of Awareness in which he acknowledged that he may receive an under other than honorable conditions discharge due to his misconduct.  He waived his right to consult with qualified counsel, so there is no record of advice a lawyer may have given him.  Since the Applicant produced no additional documentary evidence to support his statement, relief is denied. 

Issue 2:  (Decisional) (Equity).  RELIEF NOT WARRANTED.  The Applicant states he was young and naïve at the time of discharge and family problems mitigated his misconduct.  The service member’s record reflects two NJPs for alcohol-related events, one on 2 Feb 1996 and another on 17 May 1996.  He graduated from Level I Alcohol Abuse Program on 2 October 1995 and he completed Level II Alcohol rehab on 22 March 1996.  Despite the US Navy’s attempts to help him with his alcohol abuse problem, he became involved in two alcohol-related incidents; the first took place on 2 Feb 1996, four months after he completed Level I training, and the second occurred on 29 May 1996, two months after he completed Level II training.  While he may believe youth and immaturity were the underlying causes of his misconduct, the NDRB determined that his willful misconduct demonstrated that he was unfit for further service.  The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct.  The Applicant states family issues impacted his conduct.  Review of his military records reveals no reference to family troubles, nor does the Applicant provide any documentation or statements to support his claim.  In the absence of verifying documentation, relief is denied.

Issue 3:  (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant believes that since his misconduct occurred ten years ago, sufficient time has passed for an upgrade.  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.  Relief is denied.

Issue 4:  (Decisional) (Equity).  RELIEF NOT WARRANTED.  The Applicant states he is a married man with 6 children and has changed his life. While the Board appreciates his efforts to improve, besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiates or relates directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct..  In the absence of this documentation, relief is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record,  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, July 11, 1996.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

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 Association of Service Disable 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 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 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