Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700928

Original file (ND0700928.rtf) Auto-classification: Denied

ex-HM3, USN
ND07-00928

Current Discharge and Applicant’s Request

Application Received: 20070627 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910-142

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Circumstance s surrounding the discharge were handled with haste and a lack of due regard and consideration.
                           2. The errors, mis-entries and discharge characterization are a testament to the haste of my discharge and lack of sensitivity with the sexual assault of a male sailor that contracted HIV during the incident.
                           3. Post Service

Decision

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

Date: 20 080103             Location: Washington D.C          R epresentation :

Discussion

Issue 1: ( ). The Applicant contends that c ircumstance s surrounding his discharge were handled with haste and a lack of due regard and consideration. 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 his contention . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 2: ( ). The Applicant contends that t he errors, mis-entries and discharge characterization are a testament to the haste of his discharge and lack of sensitivity with the sexual assault of a male sailor that contracted HIV during the incident. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Board noted that the awards annotated in the Applicant’s service record are identical to the awards listed on the DD-214 in the Applicant service record. Additionally, t he discharge entry on the DD-214 is identical to the discharge directed by the Commander, National Naval Medical Center. Lastly, the board noted that the Applicant initialed his DD-214. The board did not find this issue resulted in the Applicant’s discharge not being proper and equitable.

Issue 3: ( ). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. 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 statements of employment, a character reference list, a list of professional skills and a list of professional organizations. as post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applica nt could have produced documentation of community service, evidence of drug free existence, certification of non-inv olvement with civil authorities, and verification of educational pursuits . The Board determined that the documentation provided by the Applicant did not mitigate 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)      20020405 - 20020429              Active:
Period of Service Under Review:
Date of Enlistment: 20020430      Years Contracted : ; Extension: Date of Discharge: 20050309
Length of Service : 2 Yrs 10 Mths 05 D ys Lost Time : 5 Days UA: 5 Days Confine d : 30
Education Level:         Age at Enlistment:       AFQT: 92          Highest Rank /Rate : HM3
Evaluation marks (# of occasions): NOT FOUND IN RECORD
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

20041102:        Applicant to UA

20050119:        Applicant apprehended by Arlington County Police pursuant to DD Form 553 warrant for desertion.

20050121:        Applicant released from custody of Arlington County Police and transferred to the military brig at Quantico.

20050128:        Charges preferred at a Special Courts-Mar tial for violations Article 86(4 specs)- (Unauthorized Absence) and Article 134 - (Failing to maintain sufficient funds).

20050218:        Defense counsel requested Applicant to be tried at summary court-martial and separated with honorable discharge

20050218:        Commander, National Naval Medical Center denies request

20050222:        Applicant released from brig

Discharge Process

Date Notified:                                       20050228
Reason for Discharge:     -
                  - HOMOSEXUAL CONDUCT

Least Favorable Characterization:

Date Applicant Responded to Notification:                  200500301
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):
Separation Authority (date):     Commander, National Naval Medical Center ( 20050303 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20050309

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) Resume

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 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 86 [Unauthorized Absence (more than 30 days)], Article 1 34 ( Failure to maintain sufficient funds ) .

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 | ND0700928

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