Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601086

Original file (ND0601086.rtf) Auto-classification: Denied

ex-AMSAR, USN
ND06-01086

Current Discharge and Applicant’s Request :

Application Received:                               20 060816
Narrative Reason for Separation:

Character of Service:
Discharge Authority :                                MILPERSMAN 3630600
Last Duty Assignment/ Command at Discharge:       USS KITTY HAWK (CV 63)

Applicant’s Request:
         Narrative Reason change to:                NOT APPLICABLE
         Characterization chang e to:
         Review Requested :
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 -

Applicant’s Issues as Summarized by the Board:
1. Equity – Post service
2. Equity – Youth/Immaturity
3. Equity – Education
4. Equity – Request RE Code change

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                19940917-19950710
Active:                                    NONE
Period of Service Under Review :
Date of Enlistment:                                 19950711
Years Contracted :                                   ;
Date of Discharge:                                  19980706
Length of Service:                                  02 Yrs 11 Mos 26 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:
Days Unauthorized Absence:                         NONE
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 42
Highest Rate/Rank:                                   AMSA N

Performance Evaluation Averages (number of marks):
Performance :                                         NOT FOUND IN RECORD
Behavior :                                            NOT FOUND IN RECORD
OTA :                                                   NOT FOUND IN RECORD
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

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

19971010 :        NJP for violation(s) of UCMJ:
         Article 107: Make false official statement on or about 19970708.
         Article 134: Commit an indecent act on or about 19970630.
         Award: Forfeiture of $505.00 for 2 months(suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2.
         No indication of appeal in the record.

19971014:        Retention Warning: Advised of deficiency (Violation of Article 107, UCMJ, in that you did, on or about 19970708, make a false official statement. Violation of Article 134, UCMJ, in that you did, on or about 19970630, commit an indecent act), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19980604 :        NJP for violation(s) of UCMJ:
         Article 86 : Unauthorized absence on or about 19980427, fail to go to appointed place of duty .
         Award: Forfeiture of $ 463 .00 for 2 month s (suspended for 6 months ) , restriction and extra duty for 30 days (15 days suspended) , reduction to E- 1 .
         No indic ation of appeal in the record.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        19980605
Reason for Discharge

Least Favorable Characterization:
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 19980607
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Recommendation of Commanding Officer (date):
Discharge directed by (date):                       COMMANDING OFFICER USS KITTY HAWK (CV 63) 19980613
Narrative reason directed :
Characterization directed:                                  GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         19980706

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 :                            1
         Other Period of Service:                                    1
Related to Post-Service Period:
         Community Service :
         Education :
         Employment :
         Health /Medical :
         Character Statements:
         Criminal Records Checks:
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 6

Total Number of Pages:                            9

D escription of Other Documentation:
        Letters of Recommendation, Shipyard Apprenticeship Program Information

Discussion

Applicant’s Issues as Summarized by the Board:

1 . Equity – Education
2 . Equity – Request RE Code chang e
3 . Equity – Post service
4 . Equity – Youth/Immaturity

Regarding the Applicant’s Issues 1 - 2 , the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum sections regarding Service Benefits, Employment/ Educational Opportunities, and Reenlistment/ RE-code.

Issue 3 ( Equity ). The Applicant provides documentation of post-service conduct in support of his request for upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. ^{The Applicant provided reference letters as documentation of post service accomplishments. 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, evidence of drug free existence, and certification of non-involvement with civil authorities.} After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge. Relief denied.

Issue 4 (Equity). The Applicant contends that his problems in the Navy can be attributed to his youth and immaturity . While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief 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), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 107 (false official statement) and Article 134 (Indecent Acts) .

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 | ND0601086

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