Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700048

Original file (ND0700048.rtf) Auto-classification: Denied

ex-HA, USN
ND07-00048

Current Discharge and Applicant’s Request:

Application Received:                               20061018
         Characterization of Service:
         Reason for Discharge:                      -
         Discharge Authority:                       MILPERSMAN 1910-142
         Duty Assignment/Command at Discharge:    NAVHOSP JACKSONVILLE, FL

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:

Issues: 1. Service Performance does not reflect Discharge Characterization
2. Medical implications clouded Applicant’s true character

Issue 1: (Equity). When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An General ( under 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 92, 107, 1 15 , and 1 21 . Violation of UCMJ Artic le 92, Failure to obey an order, Article 1 07 , False Official Statement, Article 115 Malingering and Article 121 Larceny are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

Issue 2: (Equity) . The Applicant contends that his problems were partially attributed to medical issues and that these issues resulted in false opinions of his character and diluted his true character . While he may feel that his medical issues were the underlying cause of his misconduct , the record clearly reflects his willful misconduct in the violation of the UCMJ Article 121 (Larceny) . The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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 .

Decision:

Date of Decision:                                            20 070830
Location of Board:                                  Washington D.C.
Complete Service Record:                                    NO
Complete Medical Record:                           NO
Complete Discharge Package:                        no

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 - SERIOUS OFFENSE .

Summary of Service:

Prior Service:
Inactive: USA (DEP)                                 20021113 – 20030207 Court Date After Ship ping Date
Inactive: USNR (DEP)                                20030725 - 20030803

Period of Service Under Review:
Date of Enlistment:                                 20030804
Years Contracted :
Date of Discharge:                                  20060228
Length of Service
         Active:                                     02 Yrs 06 Mths 24 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 55
Highest Rate/Rank:                                  H N

Performance Evaluation Averages (number of marks):
                                    Performance: 4.5 (2) Behavior: 4.0 (2)

Awards and Decorations (as listed on the DD Form 214): NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL

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

20060126:        CO's NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation; viol UCMJ Art. 107 – False official statement, viol UCMJ Art. 115 – Malingering, viol UCMJ Art 121 – Larceny and wrongful appropriation. Awarded - FOP ($713.00) for (2 months); RIR (E-2); Restr for (60 days).

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
GCMCA Review

Commanding Officer Recommendation (date):
Separation Authority (date):     COMMANDING OFFICER, NAVAL HOSPITAL JACKSONVILLE (20060227)
         Reason for discharge directed:            -
         Characterization directed:                         GENERAL
Date Applicant Discharged:                         20060228

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               35

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)            Grade Report from Central Texas College, 2004

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective
26 April 2005 until Present, Article 1910-142, 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 92 ( Failure to obey an order ) , Article 1 07 ( False Official Statement ) , Article 115 ( Malingering ) and 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, 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 | ND0700048

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