Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700648

Original file (ND0700648.rtf) Auto-classification: Denied

ex-BMSN, USN
ND07-00648

Current Discharge and Applicant’s Request

Application Received: 20070417 Characterization Received:

Narrative Reason: MISCONDUCT (SERIOUS OFFENSE) Authority: MILPERSMAN 1910-142

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Discharge was improper and inequitable because of financial difficulties for which the command denied the Applicant the proper help.
                           3. DD-214 states that his prior enlistment was ignored.
                           4. Post Service

Decision

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

Date: 20 071205 Location: Washington D.C          R epresentation :

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 implies that his dischar ge was improper and inequitable. He claims that he was in financial difficulties and his command and superiors denied him the help he needed. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command denied the Applicant the necessary assistance to address his financial issues . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. T he record clearly reflects the Applicant’s willful misconduct that demonstrated he was unfit for further service. T he evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by two nonjudicial punishment s for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized Absence), Article 92 (Failure to obey an order or regulation), Article 112a (Wrongful use of controlled substance) and Article 134 (Adultery). V iolation s of the UCMJ , Article s 92, 112a, and 134 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate .

Issue 3: ( ). The Applicant contends that his DD-214 does not reflect his prior enlistment. Blocks 18 . Remarks, clearly identifies “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 00JUN22 TO 04JUN24”.

Issue 4: ( ). T here is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time . Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided two character reference statement and no documentation of post-service accomplishments. T he Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. Absent any documentation provided by the Applicant for the Board to consider, the Board determined that the Applicant’s service record did not mitigat e the misconduct that resulted in the characterization of discharge. An upgrade would be inappropriate.

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)      -              Active:          20000622 - 20040624
Period of Service Under Review:
Date of Enlistment: 20040624      Years Contracted : ; Extension: Date of Discharge: 20050627
Length of Service : 1 Yrs 0 Mths 5 D ys     Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 34          Highest Rank /Rate : BM2
Evaluation marks (# of occasions):       Performance: 3.0 ( 2 )       Behavior: 2.5 ( 2 )          OTA: 2.85
Awards and Decorations ( per DD 214): NAVY UNIT COMMENDATION, NAVY "E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA

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

20050311:        NJP -- Viol UCMJ Art. 86 – Unauthorized Absence . Art. 92 – Failure to obey an order or regulation . Art. 134 - Adultery.
         Awarded - FOP ( $ 938.00 ) for ( 2 months) susp for 6 months ; RIR ( E-4 ); Restr for ( 45 days); Extra duties ( 45 days) susp for 6 months .

20050525 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20050519, tested positive for (THC).

20050526:        NJP -- Viol UCMJ Art. 86 – Failure to go to appointed place of duty . Art. 134 – Drunkenness . Art. 112a – Wrongful use of controlled substance (THC)
         Awarded – Oral Reprimand FOP ($820.00) for (2 months) ; RIR (E-3); Restr for (45 days); Extra duties (45 days)

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)
         Administrative Board                        (HKQ Code)
         GCMCA review

Commanding Officer Recommendation (date):
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20050627

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 s 92, 112a, and 134.

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 | ND0700648

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