Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700023

Original file (ND0700023.rtf) Auto-classification: Denied

ex-AR, USN
ND07-00023

Current Discharge and Applicant’s Request:

Application Received:                               20 061010
         Characterization of Service:
         Reason for Discharge :                      -
         Discharge Authority :                       MILPERSMAN 1910-142
         Duty Assignment/ Command at Discharge:    USS JOHN F. KENNEDY (CV 67) AT MAYPORT, FL

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:               RELEASED FROM ACTIVE DUTY
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1. Equity – Isolated Incident
                                                      2. Equity – Other person involved not discharged
                                                      3. Equity – In-service performance
                                                      4. Equity – Already punished for misconduct used for discharge
                                                      5. Equity – Not told at court-martial that he would be discharged
                                                      6. Equity – Post-service
                                                      7 . Equity – Re-enlistment
                                                      8 . Equity – Errors on DD-214
                                                      9 . Propriety – Command leadership issues

Decision:

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

Date of Decision:                                            20 070816
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

Issue 1 ( ). The Applicant states his discharge was based on “ one isolated incident in 24 months of service with no other adverse action .” Generally, characterization will be based upon the member's total performance of duty and conduct during the current enlistment. There are circumstances, however, where the conduct or performance of duty reflected by a single incident may form the basis of characterization. A single adverse incident that is prejudicial to good order and discipline, such as the Applicant's larceny from the Navy Exchange , may be used to characterize a Sailor's overall service. While the Board recognizes the positive aspects of the Applicant's record, including his time in service, these factors do not mitigate his misconduct .

Issue 2 ( ). The Applicant implies that his discharge was inequitable because the other service m ember involved in the incident was not discharged. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that a n under other than honorable conditions characterization was warranted.

Issue 3 ( ) . The Applicant requests upgrade to the characterization of his discharge and change to his narrative reason for discharge. 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. An under other than honorable conditions 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 S ummary C ourt M artial for Violation of UCMJ Article 121 (larceny). 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. The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 4 ( ) . The Applicant argues that his discharge was unfair because he had already been punished for the misconduct in question. The Applicant appears to be under the impression that either his discharge or the characterization of his service was punishment. For the information of the Applicant, an administrative discharge is not punishment. The Applicant’s narrative reason for separation is an accurate description of the reason for the Applicant’s discharge and is considered neither punitive nor adverse but a statement of fact . The characterization of service is a description or classification of the total service provided during the members enlistment. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge . The Board found no impropriety or inequity in the c ommand’s decision to process him, or in his subsequent separation.

Issue 5 ( ) . The Applicant contends that he was not told at his S ummary C ourt M artial that he would be processed for separation from the Naval Service. For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of punishment . Per regulation, separation processing of a service member for misconduct due to commission of a serious offense may be initiated when the service member commits misconduct that warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial for the same or closely related offense. While the command's decision to separate the Applicant was made independently, that decision is nonetheless substantiated by the awarding of Summary Court Martial for the Applicant’s violation of UCMJ Article 121 (larceny) . Accordingly, relief on this basis is not warrante d.

Issue 6 ( ). The Applicant provides evidence of post service conduct in support of his request for a change to the narrative reason for his discharge and upgrade to the characterization of his separation. 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. 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 found not sufficient to mitigate the conduct, which precipitated the discharge.

I ssue 7 . 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 .

Issue 8 and 9 . The Naval Discharge Review Board is limited to reviews of the propriety and equity of discharges. These issues are outside the Boards purview.

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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20011031 - 20011114
Active:

Period of Service Under Review :
Date of Enlistment:                                 20011115
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20031116
Length of Service
         Active:                                     2 Yrs Mths 1 D ys ( d oes not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 44
Highest Rate/Rank:                                   AN

Performance Evaluation Averages (number of marks):
                                    Performance : N/A Behavior : N/A OTA : N/A

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL

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

20031003 :        Summary Court-Martial .
         Charge: V iolation of the UCMJ, Article 121 .
         Specification: Steal shoes of a value of $129.00 from the Navy Exchange.
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $893.00, restriction for 45 days, reduction to E-2.
         CA action 20031105: Sentence approved and ordered executed.

Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20031027
Reason for Discharge                                -
Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 20031027
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Commanding Officer R ecommendation (date):        ( 20031105 )
Separation Authority (date):      COMMANDER, CARRIER GROUP SIX ( 20031106 )
         Reason for discharge directed :             -
         Characterization directed:
Date Applicant Discharged:                         20031116

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               36

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)             Security Guard Training Certificates, Certificate of Marriage Registration, Statement from D_ T_

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 121 (larceny).

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 | 2007_Navy | ND0700023

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