Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700051

Original file (ND0700051.rtf) Auto-classification: Denied

ex-ET2, USN
ND07-00051

Current Discharge and Applicant’s Request :

Application Received:                               20 061012
         Characterization of Service:
         Reason for Discharge :
         Discharge Authority :                       MILPERSMAN 1910-142
         Duty Assignment/ Command at Discharge:    NSSC KINGS BAY OTHERS NSB KINGS BAY, GA

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

Issues:          1. Unjustly Charged with Civil Crime
         2. Received wrong discharge
         3. Predetermined Separations Board
         4. Quality of Service not justly represented in discharge

Issue s 1 &2 : (Equity) Commission of a serious offence does not require adjudication by nonjuducial, judicial proceeding or civilian conviction: however, the offense must be substantiated by a preponderance of evidence. 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 action. The Applicant, with counsel representation, was administered an Administrative Board to determine: 1) Commission of a Serious Offense, 2) Recommendation for Separation/Retention, 3) Characterization if recommending separation. The Administrative Board voted: 1) unanimous - the preponderance of evidence supported the commission of a serious offense , 2) unanimous-recommended separation and 3) unanimous-recommended characterization of Other than Honor . The statement “Unjustly Charged ” provided by the Applicant does not refute the presumption of regularity in this case. Relief Denied.

Issue 3: (Equity ) The statement “Predetermined Separations Board” provided by the Applicant does not refute the presumption of regularity in this case. Members of the Administrative Board were questioned during the Voir Dire of the proceedings to establish grounds for challenge for cause. The record reflects the Applicant and his counsel produced no challenge of any member of the Administrative Board. Relief Denied.

Issue 4: (Equity ) . When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was mar red by the Applicant’s conduct with an under aged civilian female. This conduct could be equated to violation of the Uniformed Code of Military Justice, Article 134 (Indecent Act). V iolation of the UCMJ , Article 134 , is 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. Relief denied.

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 equ itable.

Decision:

Date of Decision:                                            20 070823
Location of Board:                                  Washington D.C.
Complete Service Record:                                    Yes
Complete Medical Record:                           yes
Complete Discharge Package:                        yes

Regarding propriety, the Board found the discharge:      Proper
Regarding equity, the Board found the discharge:         equitable

By a vote of 5-0 the Characterization shall remain UNDER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Reason for Discharge shall remain MISCONDUCT .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19980328 - 19980809
Active:                                              19980810 - 20020930 HON `

Period of Service Under Review :
Date of Enlistment:                                 20021001
Years Contracted :
Date of Discharge:                                  20040723
Length of Service
         Active:                                     01 Yrs 09 Mths 22 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:                                                 93
Highest Rate/Rank:                                   ET2

Performance Evaluation Averages (number of marks):
                                    Performance : 3.0 ( 2 ) Behavior : 2.0 ( 2 ) OTA : 2.91

Awards and Decorations (as listed on the DD Form 214): NAVY "E" RIBBON, GOOD CONDUCT AWARD FOR THE PERIOD OF 03MAR, NATIONAL DEFENSE SERVICE MEDAL, EXPERT RIFLEMAN MEDAL, EXPERT PISTOL SHOT MEDAL, STRATEGIC DETERRENT PATROL PIN (5)

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

20021001 :        Reenlisted this date for a term of 6 years.

20031212 :        Notice of State of Georgia Decision not to Prosecute : [ Magistrate Court of Camden County ] for Statutory Rape . S tate declined to prosecute, victims parents states that proceeding with prosecution will further traumatize the victim and have requested charges be dismissed. Warrant dismissed on 20031215.

Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20040114
Reason for Discharge

Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 20040129
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Administrative Board Date :                         20040423
         Findings, by preponderance of the evidence:      By - .         Recommendation on Separation:             By -
         Recommendation on Characterization:      By -


Commanding Officer R ecommendation (date):        ( 20040623 )
Separation Authority (date):      COMNAVPERSCOM MILLINGTON TN ( 20040706 )
         Reason for discharge directed :
         Characterization directed:
Date Applicant Discharged:                         20040723

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               8

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)             VA benefits entitlement letter

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 (formerly 3630605), SEPARATION OF ENLISTED PERSONNEL 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 .

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 | ND0700051

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