Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701156

Original file (ND0701156.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20070823

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19920421 - 19920916
Period of Service Under Review:
Date of Enlistment: 19920917                        Period of enlistment : Years              D ate of Discharge: 19940722
Length of Service : Yrs Mths 06 D ys      Education Level:         Age at Enlistment: AFQT: 31      Highest Rank /Rate : SA
Evaluation marks: Performance: 3.2 ( 2 )    Behavior: 3 .0 ( 2 )                  OTA: 3.10 (2)
Awards and Decorations ( per DD 214): , , and

NJP :      19940310 : Violations of UCMJ Art icles 86 (unauthorized absence) , 90 (disobey a commissioned officer), 91 (contempt) , and 107 (false official statement) ; Awarded - , , , and
         19940430 : Violations of UCMJ Art icle 128 (assault); Awarded - , , and
         19940521 : Violations of UCMJ Articles 91 (insubordinate conduct) , 92 (failure to obey, 2 specifications) , and 110 (hazarding of vessel) . Awarded - , , and

Retention Warnings:     19940310 : For violation of the UCMJ, Art icles 86 ( unauthorized absence, place of duty), 90 (disobedience of a commissioned officer), and 107 ( f alse official statement) .
                  19940430 : For violation of the UCMJ, Art icle 128 ( a ssault) .

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

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

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Now more mature with family and accept responsibilities.

Decision

Date: 20 08 0320 Location: Washington D.C R epresentation :

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

Discussion

Issue 1 ( ): The NDRB is authorized to consider post-service factors in the re characterization 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 servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding 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 a stated in his letter to the board that he is now more mature, accepting of responsibility, and married with children as d oc umentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the 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. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service .
For t he information of the Applicant certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the U.S. Na vy has been honest and faithful it is appropriate to characterize that service as honorable. A under other than honorable conditions d ischarge 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. The Applicant’s service was marred by three NJPs for violations of UCMJ Article s 86 (unauthorized absence), 90 (disobey a commissioned officer), 91 ( contempt and insubordinate conduct , 2 specifications ), 92 (failure to obey , 2 specifications ), 107 (false official stat e ment), 110 (hazarding of vessel), and 1 28 ( assault ) . Each violation of Articles 90, 91, 92 , 107, 110 and 1 28 constitutes the “co mmission of a serious offense” which is punishable by a di shonorable discharge and up to five years of imprisonment if adjudicated by a Courts Martial. The Applicant was properly advised of his intended administrative separation due to misconduct by a pattern of misconduct and by the commission of a serious offense. During this processing the Applicant waived his right to consult an attorney and to have his case heard before an administrative board furthermore, he did not object to this separation. After ensuring proper processing in accordance with MILPERSMAN 3630600 the discharge authority directed the Applicant’s discharge by reason of misconduct with an overall service characterization of under other than honorable conditions. The Applicant’s conduct reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service.
In reviewing discharges, the Board presume s regularity in the conduct of g overnment al 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 r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violations of UCMJ, Articles 90, 91, 92 107, 110, and 128.

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 | ND0701156

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