Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601008

Original file (ND0601008.rtf) Auto-classification: Denied

ex-ACAN, USN
ND06-01008

Current Discharge and Applicant’s Request :

Application Received:                               20 060725
         Characterization of Service:
         Reason for Discharge :                      PATTERN OF MISCONDUCT
         Discharge Authority :                       MILPERSMAN 1910-140
         Duty Assignment/ Command at Discharge:    NAVAL AIR STATION CORPUS CHRISTI TX

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:                          DOCUMENTARY REVIEW
         Representation:



Decision:

Date of Decision:                                            20 070727
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

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

Applicant’s Issues, as summarized by the Board:

1. My second NJP is unjust making my pattern of misconduct discharge unwarranted.
2. Equity – Post Service.


Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                20000912 - 20000913
Active:

Period of Service Under Review :
Date of Enlistment:                                 20000914
Years Contracted :                                   ; Extension:
Date of Discharge:                                  200407 29
Length of Service
         Active:                                     03 Yrs 10 M o s 16 D ays ( d oes not exclude lost time)
         Inactive:                                            NONE
Time Lost During This Period:             NONE
Days UA:
Days Confinement: NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 61
Highest Rate/Rank:                                   ACAN

Performance Evaluation Averages (number of marks):
                                    Performance : N/A Behavior : N/A OTA : N/A

Awards and Decorations (as listed on the DD Form 214): NAVY & MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20011205:        Applicant failed PRT (first failure) did not run.

20020514 :        NJP for violation(s) of UCMJ:
         Article 86: (6 specifications), Failure to go to appointed place of duty.
         Article 91: Insubordinate conduct toward a petty officer.
         Article 115: Malingering.
         Award: Correctional Custody for 30 days, reduction to E-2(suspended for 6 months).
         No indication of appeal in the record.

20040507:        Violation of UCMJ Article 128: Applicant was involved in a fight at the base gym NAS Corpus Christi. Applicant charged with striking another service member with a closed fist.

20040517          NJP Recommendations: Department head comments: Applicant has been keeping his nose out of trouble (Legal) for about the last year. Not to say he hasn’t been a headache for the division. He is a time-bomb that does not want to be in the Navy. Support ADSEP

20040603 :        NJP for violation(s) of UCMJ:
         Article 128: Simple Assault on 20040507
         Award: Restriction to Naval Air Station Corpus Christi for 45 days.
         Appealed 20040617 [Extracted from supporting documents] .

Elements of Discharge: [ IN VOLUNTARY]

Date Notified :                               NOT FOUND IN RECORD
Reason for Discharge     -

Least Favorable Characterization Authorized :     NOT FOUND IN RECOR D

Date Applicant R esponded to N otification:                 NOT FOUND IN RECORD
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Commanding Officer R ecommendation (date):
Separation Authority (date):      COMMANDER, NAVY REGION SOUTH ( 20040625 )
         Reason for discharge directed :             -
         Characterization directed:
Date Applicant Discharged:                         20040729

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               56

Related to Period of Service Under Review :
         From Service and/or Medical Record :                Other Records :

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                           Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant :             From Representative:
        Other Documentation (Describe)             Resume, Congressional Inquiry

Applicant’s Issues, as summarized by the Board:
1. My second NJP is unjust making my pattern of misconduct discharge unwarranted.
2. Equity – Post Service.

Decisional Issues:
The Board accepted Issues 1-2 for consideration:

Issue 1 ( ). 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 g eneral ( u nder 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’s service was marred by 2 nojudicial punishment proceedings for violation of UCMJ Articles 86 (unauthorized absence), 91 (Insubordinate conduct towards a petty officer), 115 (Malingering) and 128 (Simple Assault). 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. Relief denied .

Issue 2 ( ). 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. The Applicant provided a summary of various qualifications and achievements, and several excerpts from his service record. The Applicant’s efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. R elief denied .

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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), 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, Article 91 (Insubordinate conduct towards a petty officer ) and 115 (Malingering) .

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 . 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, provi ded 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 grante d 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 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 “PTSD . ” 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 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.

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

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NAVY | DRB | 2006_Navy | ND0601008

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