Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0601175

Original file (ND0601175.rtf) Auto-classification: Denied

FOR
ex-YN2, USN
ND06-01175

Current Discharge and Applicant’s Request:

Application Received:                               20 060907
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MILPERSMAN 1910-106
Last Duty Assignment/ Command at Discharge:       uss carl vinson CVN 70

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:               GENERAL/MEDICAL
         Review Requested:
         Representation:
Issues (as summarized by NDRB):                   1. Post service – changed life, employed


Decision:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Date of Decision:                                            20 070802
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:

Discussion

Narrative reason change: Despite a servicemember’s prior 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 Applicant’s current enlistment was marred by nonjudicial punishment for his violation of UCMJ Articles 87 (missing ships movement) as well as his subsequent unadjudicated violation of UCMJ Article 86 (unauthorized absence). The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to lead the Board to a conclusion of impropriety with regard to his discharge processing or narrative reason assigned. Violations of UCMJ Article 86, unauthorized absence in excess of 30 days, carries a maximum penalty of a Bad Conduct Discharge and 1 year of imprisonment if adjudicated by a court martial. 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 upgr ade of his characterization. Since no other n arrative reason for s eparation could more clearly describe why the Applicant was discharged, a change would be inappropriate .

Issue (1) (Post service – changed life, employed) (Equity): 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 statement indicating he has cleaned up his life and is now employed as documentation of his 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. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20000309 - 20000510
Active:

Period of Service Under Review :
Date of Enlistment:                                 20000511
Years Contracted :                                   ; 17 MONTH EXTENSION
Date of Discharge:                                  20050720
Length of Service
         Active:                                     05 Yrs 02 Mths 09 D ys ( d oes not exclude lost time)
         Inactive:                                            00 Yrs 00 Mths 00 D ys

Time Lost During This Period:                      Days UA: 472     Days Confinement: None

Education Level:
Age at this Enlistment:
AFQT:                                                 UNKNOWN
Highest Rate/Rank:                                   YN2

Performance Evaluation Averages (number of marks):
                                    Performance : 3.6 ( 5 ) Behavior : 3.6 ( 5 ) OTA : 3.68 (5)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL; SEA SERVICE RIBBON(2); NAVY ACHIEVMENT MEDAL(2); NAVY "E" RIBBON; NAVY UNIT COMMENDATION; ENLISTED SURFACE WARFARE SPECIALIST; ENLISTED AVIATION WARFARE SPECIALIST; GLOBAL WAR ON TERRORISM SERVICE RIBBON

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

20030113:        Applicant to unauthorized absence 0715.

20030113:        Applicant missed ship’s movement.

20030116:        Applicant from unauthorized absence 2045 (3 days/surrendered).

20030211 :        NJP for violation of UCMJ:
         Article 87: Missing ship’s movement.
         Award: Forfeiture of $100.00 for 1 month.
         No indication of appeal in the record.

20030221 :        Retention Warning: Advised of deficiency ( Commanding Officer’s NJP on 20030211 for VUCMJ Article 87: Missing ship’s movement. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20040226:        Applicant to unauthorized absence 0730.

20040327:        Applicant declared a deserter.

20050609:        Applicant from unauthorized absence 2045 (469 days/apprehended).

Elements of Discharge: [REQUESTED BY MEMBER]

Discharge Process:                                            Voluntary: Requested by Member
Date Member Requested Separation :                           NOT IN RECORD
Member Requested Separation Due To:                        not in record
Characterization Requested:                                  NOT IN RECORD
m ember Recognized Least Favorable:                          NOT IN RECORD
Recommendation of Commanding Officer (date):
Discharge directed by (date):                               NOT IN RECORD
Narrative reason directed:                                            NOT IN RECORD
Characterization directed:       NOT IN RECORD
Date Applicant Discharged :                                  20050720

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 :                            3
         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:             1
Other Documentation      (Describe Below)                 6

Total Number of Pages:                            10

D escription of Other Documentation:
        Yahoo mail, dated June 17, 2005 (3 pages)
         Yahoo mail, dated June 13, 2005 (1 page)
         Address book for J_ H_, Jr
         Notes from Applicant, undated, untitled (1 page)

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 86 unauthorized absence, more than 30 days .

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 | ND0601175

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