Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601090

Original file (ND0601090.rtf) Auto-classification: Denied

ex-MASA, USN
ND06-01090

Current Discharge and Applicant’s Request :

Application Received:                               20 060816
Narrative Reason for Separation:
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-140
Last Duty Assignment/ Command at Discharge:       u.s. naval air facility atsugi japan

Applicant’s Request:
         Narrative Reason change to:                N/A
         Characterization chang e to:
         Review Requested :
Representation:
Applicant’s Issues as Summarized by the Board:    1 . Equity – In service
                                                      2 . Equity – Re -e nlistment/RE Code

Decision:

By a vote of the Characterization shall .
By a vote of the Reason for Discharge shall - .

Date of Decision:                                             20 070802
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding p ropriety , the Board found the discharge :
Regarding e quity , the Board found the discharge :

Discussion

Issue 1 (Equity). The Applicant requests upgrade of his service in part based on his performance while in service. 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 general 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 a retention warnings, civilian arrests/convictions for driving without a license and assault, and two non-judicial punishments proceedings for violations of UCMJ Articles 91 (insubordinate conduct), 107 (false official statements), 111 (driving under the influence), 134.
(disorderly conduct/and fleeing the scene of an accident) . Violations of UCMJ Articles 107, 111, and 134 are considered serious offense for which a punitive discharge is authorized at courts martial. Assault if punished under UCMJ Article 128 is also considered a serious offense. 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.

Regarding Applicant’s Issue 2, the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum section regarding Reenlistment/ RE-code.

There is a presumption of regularity in the conduct of Government affairs. This presumption will be applied in any review 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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20011127 - 20020129
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20020130
Years Contracted :                                   ; 19 MONTH
Date of Discharge:                                  20051122
Length of Service:                                  03 Yrs 09 Mos 24 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:                                     18
AFQT:                                                 59
Highest Rate/Rank:                                   MASN

Performance Evaluation Averages (number of marks):
Performance :                                         3. 33 ( 6 )
Behavior :                                            2. 50 ( 6 )
OTA :                                                   3. 0 6
Extracted from:
Applicant’s Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
ENLISTED SURFACE WARFARE SPECIALIST BREAST INSIGNIA, NATIONAL DEFENSE SERVICE MEDAL, FLAG LETTER OF COMMENDATION, NAVY GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE MEDAL(2), EXPERT RIFLEMAN MEDAL, EXPERT PISTOL MEDAL, SEA SERVICE DEPLOYMENT RIBBON

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

199909??:        Civil Arrest: Safford, AZ for driving without a license. [Extracted from Commanding Officer’s letter dated 20050927.]

19990915:        Civil Charge/Convict i on: Safford, AZ for assault. Fined $120 and placed on probation for one year. [Extracted from Commanding Officer’s letter dated 20050927.]

20050303 :        Retention Warning: No further information found. [ Extracted from Commanding Officer’s letter dated 20050927.]

20050303 :        NJP for violation(s) of UCMJ:
         Article 107: Making false official statement.
         Article 111 (2 specifications):
         Specification 1: Drunken operation of a vehicle.
         Specification 2: Reckless operation of a vehicle.
         Article 134 (2 specifications):
         Specification 1: Disorderly conduct.
         Specification 2: Fleeing scene of accident.
         Award: Forfeiture of ½ month’s pay per month for 2 months, restriction for 45 days, reduction to E- 2. Reduction suspended for 6 months.
         No indication of appeal in the record. [Extracted from Commanding Officer’s letter dated 20050927.]

20050623:        R eduction in pay grade at NJP on 20050303 vacated due to continued misconduct. [Extracted from Commanding Officer’s letter dated 20050927.]

20050 623 :        NJP for violation(s) of UCMJ:
         Article 91 : Insubordinate conduct toward a petty officer.
         Award: R estriction for 2 0 days , reduction to E- 1 (suspended for 6months) .
         No indic ation of appeal in the record. [Extracted from Commanding Officer’s letter dated 20050927.]

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

20050513: Medical evaluation by Substance Abuse counselor, LT MSC, USNR. M ASN E_ J. L_ (Applicant) was en rolled in the ASAM Level 2.0 Intensive Outpatient Treatment Program for Alcohol Abuse at eh Substance Dependence Rehabilitation Program, U.S. Nav a l Hospital, Yokosuk a , Japan on 20050502 and completed the program on 20050513. He is required to participate in a one-year aftercare plan.
Assessment: 1. Alc o hol Abuse
         2. FAIR prognosis upon release.
         3. Counselor’s impression: Pt. Stated many time s he wanted a long term responsible drinking lifestyle and long-term recovery for his alcohol problem. It is clear at this time the Patient is moderately dedicated to working on his life issue of self-expression, anger management and inter-personal relationship issues. FAIR prognosis due to Patient continuing to suffer from possible unresolved family of origin issues and emotional self expression of his needs as well as possible triggers due to lack of communication skills with his healthy supports and coping with stress due to his uncertainty about his career future . . . .

Elements of Discharge:

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

Administrative Board Date:                         UNKNOWN
Findings and Recommendations:
Reason for Discharge:                               ; ; Vote: 3 to 0
Reason for Discharge:                               ; ; Vote: 3 to 0
Separation Warranted:                               ; Vote: NOT FOUND IN RECORD
Recommendation Regarding Separation:              ; Vote: 3 to 0

Recommendation of Commanding Officer (date):     20050927
Discharge directed by (date):                       CO, U.S. NAVAL AIR FACILITY ATSUGI 20050927
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         20051122

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 :                            15
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           1
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            16

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article
1910-140, 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, 107 (false official statements), 111 (driving under the influence), 128 (Assault), and 134 (disorderly conduct/and fleeing the scene of an accident) .

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 | ND0601090

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