Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700009

Original file (ND0700009.rtf) Auto-classification: Denied

ex-ABHAN, USN
ND07-00009

Current Discharge and Applicant’s Request:

Application Received:                               20060927
         Characterization of Service:              OTHER THAN HONORABLE
         Reason for Discharge:
         Discharge Authority:                       MILPERSMAN 3630600
         Duty Assignment/Command at Discharge:    USS THEODORE ROOSEVELT (CVN 71)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:                          APPEARANCE BEFORE THE BOARD CHANGED TO
         Representation:
         Issues (as summarized by NDRB):          1. Employment
                                                      2. Was told if stays out of trouble for four year discharge would be                                                           upgraded.


Decision:

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

Date of Decision:                                            20 070813
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

Issues 1 and 2 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the naval 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. A n other than honorable 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 Applicant’s service was marred by a summary court martial, three nonjudicial punishment s and a retention warning for violations of UCMJ Articles 86 (unauthorized absence , 6 specifications ), 87 (missing movement), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct , 2 specifications ), and 92 (failure to obey , 2 specifications) . These Nonjudicial punishments and summary court martial form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment. For the information of the Applicant, v iolations of UCMJ Article s 87, 90, 91, and 92 carry a penalty of a dishonorable discharge and 2 year s of imprisonment for each specification if adjudicated by a court martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of his /her contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19951207 - 19960102
Active:

Period of Service Under Review:
Date of Enlistment:                                 19960103
Years Contracted :
Date of Discharge:                                  19971113
Length of Service
         Active:                                     1 Yrs 10 Mths 1 0 D ys (does not exclude lost time)
         Time Lost During This Period:             Days UA: 45 Days         Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 35
Highest Rate/Rank:                                  ABHAN

Performance Evaluation Averages (number of marks):
                                                      Performance: 2.0 Behavior: 2.0 OTA: 2.17 (1)

Awards and Decorations (as listed on the DD Form 214): ARMED FORCES SERVICE MEDA;, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Reason for Discharge

19960615:        Applicant to unauthorized absence at 0001 on 19960615.

19960615:        Applicant from unauthorized absence at 1030 on 19960615 (10 hours 29 minutes/surrendered).

19960923 :        Applicant to unauthorized absence.

19961009:        Applicant missed ships movement.

19961020 :        Applicant from unauthorized absence (29 days /surrendered).

19961104 :        Applican t to unauthorized absence .

19961120 :        Applicant from unauthorized absence (1 5 days /surrendered).

19961213:        Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86 (2 specs).
         Specification 1: UA from 19960923-19961020.
         Specification 2: UA from 19961104-19961120.
         Charge II: Violation of the UCMJ, Article 87:
        Specification: Missing ship’s movement through neglect on 19961009.
        Finding: To Charge I and II, and the specifications thereunder, guilty.
         Sentence: Forfeiture of $437.00, restriction for 30 days.
         CA action 19961212: Sentence approved and ordered executed.

19961230:        NJP for violation of UCMJ:
         Article 86: Failure to go to appointed place of duty, to wit: Restricted Person’s Muster.
         Award: Bread & Water for 3 days.

19970112:        Retention Warning: Advised of deficiency (Your summary court-martial conviction on 19961209 for unauthorized absence and missing ship’s movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19970616 :        Ap plicant to unauthorized absence .

19970618 :        Applicant from unauthorized absence at 1050 ( 01 day /surrendered).

19970710:        Applicant unauthorized absent from 0700 until 0830.

19970717:        Applicant unauthorized absent from 0630 until 0710.

19970726:        Applicant to unauthorized absence from 06 30 until 0830 .

19970808 :        NJP for violat ions of UCMJ:
         Article 86: (3 specs).
         Specification 1: UA from unit from 0700, 19970616 until 1050, 19970618.
         Specification 2: UA from unit from 0700, 19970710 until 0830, 19970710.
         Specification 3: UA from unit from 0630, 19970717 until 0710, 19970717.
        Article 90: Willfully disobeying Superior Commissioned Officer.
         Article 91: Insubordinate conduct towards a Petty Officer.
         Article 92: Dereliction in the proper performance of duties.
         Award: Forfeiture of $450.00 for 2 months, restriction and extra duty for 45 days.

19971014 :        NJP for violation s of UCMJ:
         Article 91: Willful disobedience of a Petty Officer.
         Article 92: Dereliction of duty.
         Award: Forfeiture of $400.00 for 1 month, restriction and extra duty for 14 days.

19971020:        Applicant to unauthorized absence.

19971023:        Applicant from unauthorized absence (2 days/surrendered).

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge                                 NOT FOUND IN RECORD
Least Favorable Characterization Authorized:
Date Applicant Responded to Notification:                 NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board                       GKA code on DD-214 indicated Admin Board was held
GCMCA Review

Commanding Officer Recommendation (date):
Separation Authority (date):     NOT FOUND IN RECORD
         Reason for discharge directed:
         Characterization directed:                         NOT FOUND IN RECORD
Date Applicant Discharged:                         19971113

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               2

Related to Period of Service Under Review:
         From Service and/or Medical Record:               Other Records:

Related to Other Period(s) of Service:
         From Service and/or Medical Record:               Other Records:

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

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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 s of the UCMJ, Article s 87 (missing movement), 90 (willfully disobey), 91 (insubordinate conduct), and 92 (failure to obey) .

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 | 2007_Navy | ND0700009

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