Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601038

Original file (ND0601038.rtf) Auto-classification: Denied

ex-AZAA, USN
ND06-01038

Current Discharge and Applicant’s Request

Application Received: 20060807 Characterization Received:

Narrative Reason: MISCONDUCT COMMISSION OF SERIOUS OFFENSE Authority: MILPERSMAN 3630600

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

Applicant’s Issues:       1. Discharge does not reflect overall service.
                           2. Although previously recommended for discharge, the command did not.
                           3. The letter which was written asking to be put out of the Navy was a lie.
                           4. Now have three sons and full time employ ment .

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .

Date: 20 071017 PERSONAL APPEARANCE HEARING Location: Washington D.C.

Discussion

Issue 1 ( ): The Applicant states his discharge was based on one isolated incident. Despite the positive aspects of a service member’s record of service , certain serious offenses , even though isolated , warrant separation from the n aval service in order to maintain proper order and discipline. The record documents the Applicant ’s violation of UCMJ Article 121 (larceny) which is the basis for his discharge. The Applicant waived his right to an administrative board and did not dispute his discharge or the characterization. Violations of UCMJ Article 121(larceny) carry a maximum penalty of a Bad Conduct Discharge and six months of imprisonment if adjudicated by a court martial . Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

Issue 2 (Equity): The Applicant contends that his discharge was in - equitable based on a previous recommend for discharge resulting from a diagnosis of personality disorder. For the information of the Applicant, discharge recommendations by a physician to a Commanding Officer are not binding. The Commanding Officer is c harged with weighing the members total ability, if (as he did in this case) the Commanding Officer determines it to be in the best interest of the Navy to not follow the medical recommendation he is under no obligation to do so. This issue is without merit.

Issue 3 (Equity): The Applicant testified that the letter which he wrote to the discharge authority asking to be discharged was a lie. The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the n aval service. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. An other than honorable conditions characterization of service 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 record supported the commission of a serious offense for which the Applicant was administratively discharged. T hat se paration was appropriate, and an under other than honorable conditions characterization of service was warranted . T he Board found the Applicant’s discharge proper and equitable.

Issue 4 ( ): The NDRB is authorized to consider post-service factors in the re characterization 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 servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding 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 cons idered. The Applicant testified that he has three sons to whom he is a single Father, he has earned an associates degree in accounting and now is employed in the automobile industry. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, 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 which resulted in the Applicant’s discharge and characterization of his service .

Summary of Service

Prior Service:
Inactive: USN (DEP)       19880908 - 19981106     Active:
Period of Service Under Review:
Date of Enlistment: 19881107      Years Contracted : ;     Date of Discharge: 19911104
Length of Service : 02 Yrs 11 Mths 28 D ys                            Lost Time :
Education Level:         Age at Enlistment:       AFQT: 57          Highest Rank /Rate : AZAN
Evaluation marks (# of occasions):       Performance: 3.5 ( 5 )      Behavior: 3.3 ( 5 )         OTA: 3.36 (5)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, .38 CAL PISTOL MARKSMAN

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19890605:        CO's NJP - Viol UCMJ Art. 111 - Drunk driving (19890527), Article 134 - Possessing alcohol under the age of 21 (19 89 0527). Awarded - FOP ( $125.00 for 2 months) ; RIR ( E-1). RIR suspended for 6 months .

UNDATED:         Retention Warning for personality disorder as evidenced by medical record consultation sheet (SF 513) dated 19900217.

19910430:        Retention Warning for disorderly conduct at the Navy Exchange Garage, Barbers Point, Hawaii, on 19910311.

19910912 :        CO' s NJP - Viol UCMJ Art. 95 - Resistance of arrest, Article 121 - Larceny. Awarded - FOP ( $422.00 for 2 months); RIR ( E-2 ); Restr ( 50 days) . FOP for 1 month s uspended for 6 months.

19910920:        Applicant’s letter to discharge authority: “...I am not military material...I did what I did due to the fact that I do not qualify for a military hardship discharge to get out and get a better job that pays more...I thought getting into trouble would free me from my financial nightmare, so I did what I did ... ”

19950501:        NDRB document review resulted in no change to characterization of service.

19990211:        BCNR document review resulted in no change to characterization of service.

Discharge Process

Date Notified:                                       19910919
Reason for Discharge:                                - COMMISSION OF SERIOUS OFFENSES
Least Favorable Characterization:

Date Applicant Responded to Notification:                  19910920
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         ( 19910920 )
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):        ( 19911002 )
Separation Authority (date):     BUPERS ( 19911022 )
Reason for discharge directed: - SERIOUS OFFENSE
Characterization directed:
Date Applicant Discharged:       19911104

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

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

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

PERSONAL APPEARANCE HEARING

NDRB Documentary Review Conducted (date):        19950501
NDRB Documentary Review Docket Number:   ND94-01906
NDRB Documentary Review Findings:                 No change warranted.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 121 .

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 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 : 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.

Employmen t / 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 | ND0601038

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