Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700691

Original file (ND0700691.rtf) Auto-classification: Denied

ex-HTFA, USN
ND07-00691

Current Discharge and Applicant’s Request

Application Received: 20070501 Characterization Received:

Narrative Reason: MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 1910-142

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1.Impecable record until this incident/ discharged 15 days before EAOS expired


Decision

By a vote of the Characterization shall : .
By a vote of the Narrative Reason shall : MISCONDUCT DUE TO COMMISSION OF A SERIOUS
OFFENSE .

Date: 20071220                      Location: Washington D.C         R epresentation :

Discussion

Issue 1 (). Applicant contends that he had an impeccable record until this incident, in which he was wrongfully accused of lying, and separated within 15 days of receiving an honorable discharge. 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 service record, which is marred by a retention warning on 20030507 for failure to meet physical readiness standards, and a nonjudicial punishment (NJP) proceeding on 20060213, for violation of the UCMJ, Article 134, False pass offense. Applicant submits no documentation, nor did the Board find any evidence in the record to support his contention that he was wrongfully accused of lying. Furthermore, Applicant contends that he was discharged within 15 days of receiving an honorable discharge. An enlisted member may be separated prior to the expiration of their contract for misconduct, if the requirements of the MILPERSMAN have been met. The Applicant’s record indicates that the requirements for separation due to commission of a serious offense as outlined in MILPERSMAN 1910-142 had been met. The Applicant’s record also indicates that at the time of his discharge on 20060522, the Applicant had 15 days remaining on his enlistment contract and an additional 12 month extension until 20070606, to meet the obligations of the Bonus program. Accordingly, evidence contained in the record substantiates the reason for his separation as well as his characterization of service as general under honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged.

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 or inequity 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 could 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 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)      20020130 - 20020606              Active:
Period of Service Under Review:
Date of Enlistment: 20020607      Years Contracted : ; Extension: Date of Discharge: 20060522
Length of Service : 03 Yrs 11 Mths 16 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 65          Highest Rank /Rate : HTFN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): NDSM, GWOTSM

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

20030507:        Retention Warning for failure to meet physical readiness standards.

20060213 :        NJP -- Viol UCMJ Art. 134 – False pass offense on or about 20060201 .
         Awarded - FOP ( $ 500.00 ) for ( 1 month); RIR ( E-2 ); Restr for ( 14 days); Extra duties ( 14 days) .

Discharge Process

Date Notified:                                       20060214
Reason for Discharge:     -
Least Favorable Characterization:

Date Applicant Responded to Notification:                  20060214
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):        ( 20060217 )
Separation Authority (date):     COMMANDER, CARRIER STRIKE GROUP TWELVE ( 20060225 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20060522

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 | ND0700691

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