ex-ABHAN, USN

Current Discharge and Applicant’s Request

Application Received: 20100921
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19910624 - 19920614  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19920615	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960614	Highest Rank/Rate:  ABHAN
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  50
Evaluation Marks:	Performance:  3.8 (3)	Behavior:  3.7 (3)	OTA:  3.80	4.0 evals
	Performance:  2.0 (1)	Behavior:  1.0 (1)	OTA:  2.00	5.0 eval

Awards and Decorations (per DD 214):	    (WITH BRONZE STAR)   (WITH BRONZE STAR) 

Periods of CONF:  

NJP:  

- 19930703:	Article  (Failure to obey a lawful order, 2 specifications)
	Specification 1: Drinking under the age of 21
	Specification 2: Drinking onboard a U.S. Naval vessel
	Awarded:    Suspended:  

- 19950710:	Article  (Drunk and disorderly)
	Awarded:     Suspended:  

- 19950827:	Article  (Failure to obey lawful order or regulation – missing restricted man’s muster)
	Awarded:   Suspended:  

- 19951114:	Article  (Failure to go to appointed place of duty at 2100, 19950921)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19930703:	For failure to obey a lawful order by drinking under the age of 21.  Failure to obey a lawful regulation by drinking alcohol onboard a U.S. Naval vessel.

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), 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.	Wants Reentry (RE) code changed to RE-1.
2.	Applicant contends he completed all four years of active service, suggesting an Honorable discharge was warranted.
3.  	Applicant contends his post-service achievements and conduct warrant consideration for upgrading his discharge.
4.	Applicant contends his discharge was improper, because it did not meet the criteria for separation based on a pattern of misconduct.  Record shows three non-judicial punishments (NJP) in a short timeframe.  The two subsequent NJPs stem from the first.  Without the first NJP, the two subsequent NJPs would not exist.
5.  	Applicant contends he did not get a fair hearing at the NJP. 
6.	Applicant contends the NJP case was kicked back by the Executive Officer multiple times due to lack of evidence.
7.	Applicant contends the witnesses’ characters were never brought into question at the first NJP.  Witnesses were alleged drug abusers and were subsequently discharged during the timeframe in question.

Decision

Date:  20110907		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  NAVPERS 1070/613 (Page 13) warning and  non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Failure to go to appointed place of duty, 1 specification), Article 92 (Failure to obey order or regulation, 3 specifications), and Article 134 (Drunk and disorderly conduct, 1 specification).  Based on the offenses 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, submit a written statement, and request an administrative board.

:  (Non-decisional) The Applicant wants his Reentry (RE) code changed to RE-1.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Armed Forces and is not authorized to change an RE code.  Only the Board for Correction of Naval Records can make changes to RE codes.  

:  (Decisional) ()  .  The Applicant contends he completed all four years of active service, suggesting he should have received an Honorable discharge.  According to regulations, a separation takes effect at 2359 on the date of separation.  Although the Applicant was discharged on 14 June 1996, which coincides with the end of his service contract, the Separation Authority approved his discharge on 11 June 1996, prior to his end of active obligated service (EAOS).  The completion of discharge actions, as approved by the Separation Authority, on the EAOS date was coincidental.  Separation on the EAOS date does not mean that all contractual obligations were met or automatically entitles a member to an Honorable discharge.  To receive an Honorable discharge, the quality of the member’s service generally must meet acceptable standards of conduct and performance, or be so meritorious that any other characterization of service would be clearly inappropriate.  The NDRB determined the discharge process was proper.  In addition, considering the Applicant had multiple occasions of misconduct, the Board determined the assigned characterization of service was equitable.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends that his post-service achievements and conduct warrant consideration for upgrading his discharge to Honorable.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service.  

Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Along with his DD Form 293, the Applicant submitted character reference letters and documentation of his service in the Army National Guard.  Although his accomplishments are commendable, the Board concluded that neither his documentation nor his testimony regarding his post-service activities contained sufficient information to effectively evaluate his post-service accomplishments and conduct.  In addition to the documentation pertaining to his continued military service and character references, he could have provided documentary evidence of the following: verifiable continuous employment record, marriage and children’s birth certificates (if applicable), documentation of community or church service, certification of non-involvement with civil authorities, evidence of financial stability or letters of good standing from financial institutions (including banks and credit card companies), and attendance at or completion of higher education (official transcripts).  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.  Relief denied.
 
Issue 4:  (Decisional) ()  .  The Applicant contends his discharge was improper, because it did not meet the criteria for separation based on a pattern of misconduct.  He contends that the two NJPs he received on 27 August 1995 and 14 November 1995 stem from the first one that was received on 10 July 1995.  He further contends that he did not commit the violations that led to the first NJP and that without the first NJP, the subsequent NJPs would not exist and the criteria for a discharge based on a pattern of misconduct would not have been met.  During the period that the Applicant was discharged, a pattern of misconduct was defined as three or more NJPs, courts-martial, or civil conviction (or a combination thereof) during one period of enlistment.  The member must have also violated a counseling warning prior to initiating processing for separation.  Such a pattern may include both minor and serious infractions.  Documentation found in the Applicant’s service record indicates he committed an offense that resulted in the imposition of NJP on 10 July 1995.  The punishment from that NJP included restriction.  The Applicant violated that restriction and appropriately received NJP on 27 August 1995 for that violation.  The Board determined that the NJP received on 14 November 1995 was completely unrelated to the previous NJPs.  The Board further determined that the criteria for separation based on a pattern of misconduct were met.  Relief denied.

Issues 5 thru 7: ()  .  The Applicant contends he did not get a fair NJP hearing, because there was not enough evidence against him and the witnesses against him were not credible.  The government enjoys 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 his claim.  There is no evidence in the record, nor did the Applicant produce any credible documentary evidence, to support his contention that he did not get a fair NJP hearing.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Therefore, based on the presumption of regularity, the NDRB concluded that all matters pertaining to NJPs in this case were conducted appropriately.  Relief denied.

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 is not eligible for additional reviews or hearings by the NDRB.  He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149.  

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.

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