Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700472

Original file (ND0700472.rtf) Auto-classification: Denied

ex-AN, USN
ND07-00472

Current Discharge and Applicant’s Request

Application Received: 20070227 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910-142

Applicant’s Request:      Characterization change to:
                           Narrative Reason : Change Misconduct

Applicant’s Issues:       1. Benefits
                           2. Contends being treated for mental condition and was not UA.

Decision

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

Date: 20 071101                                     Location: Washington D.C.

Discussion

Issue 1 : 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 2 ( ): The Applicant contends that he was not UA but being treated for his mental condition. In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence . Specifically with regard to the Applicant’s medical treatment there is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of hospitalization . The record however, does fully document the Applicant’s medical treatment both prior to and immediately following his 36 days of unauthorized absence, his nonjudicial punishment for the same offense, and multiple annotations in the Applicant’s medical record documenting he was responsible for his behavior. N othing indicates that the Applicant’s discharge was in any way inequitable . In the Applicant’s case the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

With regard to the Applicant’s request to have his narrative reason for discharge changed t he NDRB will change the reason for discharge if such a change is warranted . The MilPersMan designates specific phraseology to be used in block 28 of the DD-214. In the Applicant’s case t he separation process was in strict compliance with the Naval Military Personnel Manual. The Applicant was properly processed for separation by reason of misconduct due to the commission of a serious offense . T he summary of service clearly documents the Applicants violations of UCMJ Articles 85 (desertion) and 86 (unauthorized absence in excess of 30 days). Violations of UCMJ Articles 85 and 86 each constitute the “commission of a serious offense ” which are punishable by up to a dishonorable discharge and up to one year of imprisonment if adjudicated by a c ourts -m artial. The S eparat ion A uthority directed that that Applicant be discharged by reason of misconduct due to the commission of a serious offense . The N aval Military Personnel Manual 1910-142 , for the period in question directs that Block 28 contain the word “MISCONDUCT” when separating under these conditions. To change the n arrative r eason for s eparation would be inappropriate.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice record e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20030926 - 20040309              Active:
Period of Service Under Review:
Date of Enlistment: 20040310               Years Contracted :       Date of Discharge: 20060512
Length of Service : 01 Yrs 11 Mths 24 D ys                                     Lost Time : Days UA: 36
Education Level:         Age at Enlistment:       AFQT: NOT FOUND IN RECORD         Highest Rank /Rate : AN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A             OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20060207:        Applicant to unauthorized absence at 0700 on 20060207.

20060313:        Applicant from unauthorized absence at 1430 on 20060313 (36 days/surrendered).

20060426:        NJP (extracted from Commanding Officer’s letter to BUPERS).

20060504:        Commanding Officer, Navy Region Southwest Transient Personnel Unit informed Commander, Naval Personnel Command of the Applicant’s separation with a service characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “ ABHAN T_ (Applicant) appeared before me at nonjudicial punishment proceedings on 26 Apr 06 as detailed in subparagraph 1d above; offenses which normally would warrant an Other Than Honorable Discharge. However, I believe that his mitigating circumstances do not warrant an Other Than Honorable. Therefore, I authorized the separation of ABHAN T_ from the Naval Service with a General Discharge by reason of misconduct due to the commission of a serious offense.....”.

Discharge Process

Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     -

Least Favorable Characterization:

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         GCMCA review

Separation Authority (date):     COMMANDING OFFICER, NAVY REGION SOUTHWEST TRANSIENT PERSONNEL UNIT ( 20060504 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20060512

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

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

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

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 85 and 86 .

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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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.

Employmen t / 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

Similar Decisions

NAVY | DRB | 2010_Navy | ND1001809

Original file (ND1001809.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and...
NAVY | DRB | 2014_Navy | ND1400172

Original file (ND1400172.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
NAVY | DRB | 2010_Navy | ND1000907

Original file (ND1000907.rtf) Auto-classification: Denied

There is no requirement, or law, that grants re-characterization of a discharge solely on the issue of making a former service member eligible for Veterans' educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of...
NAVY | DRB | 2013_Navy | ND1301343

Original file (ND1301343.rtf) Auto-classification: Denied

Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...
NAVY | DRB | 2010_Navy | ND1001544

Original file (ND1001544.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant contends his discharge characterization is excessive for the offense. By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board...
NAVY | DRB | 2008_Navy | ND0801748

Original file (ND0801748.rtf) Auto-classification: Denied

The Board determined the characterization of service received was an appropriate characterization considering the length of service and the UCMJ violation involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant...
NAVY | DRB | 2009_Navy | ND0900829

Original file (ND0900829.rtf) Auto-classification: Denied

Therefore, relief is denied.After a thorough review of the available evidence, to include the Former ser Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, theBoard found 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...
NAVY | DRB | 2011_Navy | ND1101260

Original file (ND1101260.rtf) Auto-classification: Denied

” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
NAVY | DRB | 2013_Navy | ND1300989

Original file (ND1300989.rtf) Auto-classification: Denied

After a complete review of the records, the Applicant’s statement, his defense counsel’s Letter of Deficiency following his administrative separation board, the separation board proceedings, the results of the Article 32 hearing, and the Applicant’s service records, the NDRB determined he was provided full due process and all applicable rights. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and...
NAVY | DRB | 2012_Navy | ND1201692

Original file (ND1201692.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants an upgrade for employment opportunities and education benefits.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The...

Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700472

Similar Decisions