Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700610

Original file (ND0700610.rtf) Auto-classification: Denied

ex-CSSN, USN
ND07-00610

Current Discharge and Applicant’s Request

Application Received: 20070410 Characterization Received:
Narrative Reason: MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 1910-142

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. No prior bad acts in 14 years of service
                           2. Recommendation for Administrative Discharge based on unconfirmed UA

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall read MISCONDUCT (SERIOUS OFFENSE) .

Date: 20 071129 Location: Washington D.C          R epresentation :

Discussion

Issue 1 (Equity) : The Applicant contends that his discharge should be upgraded as he had no bad acts prior to this incident and had serv ed the military for fourteen years. The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his package to the NDRB, which shows h is service record to be marred by the finding at non - judicial punishment (NJP) proceeding s on 200 51123 for violation of UCMJ Article 85, Desertion and Article 87, Missing S hip’s M ovement , and a subsequent NJP on 20060121 for violation of UCMJ, Article 86, Unauthorized Ab sence, Article 87, Missing S hip’s M ovement (2 specifications) and Article 92, Failure to O bey an O rder. This misconduct substantiates the reason for h is separation as well as his characterization of service as general (under honorable conditions). No other characterization could more clearly describe the Applicant's service .

Issue 2 (Propriety) : The Applicant contends that the recommendation of discharge was based on a “unconfirmed charge of AWOL” and that during this time he was depressed a nd worried about his family in New Orleans . The NDRB sympathizes with the Applicant's personal difficulties that he encountered and recognizes that serving in the Navy is challenging. Nonetheless, o ur country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. The hardships and challenges of military life, however, do not excuse a member of the Naval service from accountability for his actions. There is no evidence in the record to suggest that the Applicant’s recommendation for separation was based on unsubstantiated evidence . Neither does the evidence indicate that he was not responsible for his misconduct and should not be held accountable for his actions. The record shows that the Applicant was advised of the rights afforded to him as part of the administrative separation process and did elect his right to consult with legal counsel certified under Article 27B of the UCMJ and was represented by counsel when he present ed his case before an administrative discharge board. The NDRB found that the re was no impropriety in the administrative discharge proceedings , and that his service was characterized, equitably.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 should 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. As of this time, the Applicant has not provided any/sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.
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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19910808 - 19910820              Active:          19910821 - 19951112
                                                                                          19951113 - 20011004

Period of Service Under Review:
Date of Enlistment: 20011005      Years Contracted : ; Extension: Date of Discharge: 20060428
Length of Service : 04 Yrs 06 Mths 24 D ys          Lost Time : Days UA:
Days Confine d : Education Level:         Age at Enlistment:       AFQT: 35          Highest Rank /Rate : MS2
Evaluation marks (# of occasions):       Performance: 3.6 ( 5 )       Behavior: 3.8 ( 5 )          OTA: 3.51
Awards and Decorations ( per DD 214): NDSM (2), GCM (2), GWOTSM, SSDR (5), BER, CGSOR, LOC

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

20051123:        NJP -- Viol UCMJ Art. 85, Art. 87 (2 specs) .
         Awarded - FOP ( 1/2 months pay ) for ( 2 months); RIR ( E-3 ); Restr for ( 45 days); Extra duties ( 45 days).

20060121 :        NJP -- Viol UCMJ Art. 86, Art 87, Art 92 (2 specs) .
         Awarded - FOP ( unreadable ) for ( 2 months); RIR ( E-4 ); Restr for ( 45 days); Extra duties ( 45 days) .

Discharge Process

Date Notified:                                       20060112
Reason for Discharge:     -
Least Favorable Characterization:

Date Applicant Responded to Notification:                  20060112
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
         Administrative Board
         GCMCA review

Administrative Board Date :       20060303
Findings, by preponderance of the evidence:      BY .
         BY .
         BY SEPARATION WARRANTED.
Recommendation on Separation: BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20060323 )
Separation Authority (date):     COMMANDER, NAVAL SURFACE FORCE, U.S. ATLANTIC FLEET ( 20060425 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20060428          Discharged in absentia

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 .

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

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NAVY | DRB | 2007_Navy | ND0700610

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