Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601030

Original file (ND0601030.rtf) Auto-classification: Denied

ex-ABF2, USN
ND06-01030

Current Discharge and Applicant’s Request :

Application Received:                               20 060801
Narrative Reason for Separation:                           FULFILLMENT OF MILITARY SERVICE OBLIGATION
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       uss john c stennis (CVN 74)

Applicant’s Request:
         Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                            20 0 7 0 7 0 6
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 EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS) .

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                1992022 4 - 19920420
Active: USN                                 19920421 - 19960418
         USN                                          19960419 - 20010425 HON
Period of Service Under Review :
Date of Enlistment:                                 20010426
Years Contracted :                                   ;
Date of Discharge:                                  20030725
Length of Service:                                  02 Yrs 03 Mos 00 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 NOT FOUND IN RECORD
Highest Rate/Rank:                                   ABF1

Performance Evaluation Averages (number of marks):
Performance :                                         5.0 (3)
Behavior :                                            3.7 (3)
OTA :                                                   3.95
Extracted from:
Applicant’s Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, 3 ^RD NAVY AND MARINE CORPS ACHIEVEMENT MEDAL; SOUTHWEST ASIA SERVICE MEDAL, 3 ^RD NAVY GOOD CONDUCT MEDAL FOR PERIOD ENDING 2002JAN01, FLAG LETTER OF COMMENDATION, MERITORIOUS UNIT COMMENDATION, NAVY UNIT COMMENDATION

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030527 :        Summary /Special Court-Martial.
         Charge: Violation of the UCMJ, Article 92:
         Specification: Order violations.
         Charge: V iolation of the UCMJ, Article 134 .
         Specification: Fraternization, adultery and orders violations. Pled guilty to all.
         S entence: Not found in service record. [Extracted from Evaluation Report and Counseling Record d ated 20030725.]

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

NONE.

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            17
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 5

Total Number of Pages:                            22

D escription of Other Documentation:
Discussion of Issues from applicant and attorney (5 pages)

Discussion

Applicant’s Issue as Summarized by the Board:
1. Characterization of discharge should be changed based on expiration of obligated service (EAOS).

Decisional Issues:

Issue 1 ( ) MILPERSMAN 1910-104 states: characterization of discharge, by reason of EAOS, must be honorable, unless a general is warranted on the basis of the Enlisted Performance Evaluation System. The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record. ” A review of the Applicant’s records indicated an honorable discharge was warranted. The Applicant was discharged at EAOS with a final evaluation average of 3.95 well above the required 2. 50 minimum for an honorable discharge. Relief is warranted.

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 was im proper and in equitable.

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until
19 June 2005, Article 1910-104 (previously 3620150), SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 92 (Orders violation) and 134 (Fraternization , Adultery).

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, 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 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 | ND0601030

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