Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701219

Original file (ND0701219.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20070905
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 (SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive: USMCR          19770509 – 19830508 GEN          Active: None
US N R (DEP)       19881130 - 19981205

Period of Service Under Review:
Date of Enlistment: 19881206      Period of E nlistment : Years Extension         Date of Discharge: 19921009
Length of Service : Y ea rs M on ths 04 D a ys        Education Level:         Age at Enlistment:       AFQT: 56
Highest Rank /Rate : HN     Evaluation M arks: Performance: 3.2 ( 3 )     Behavior: 3.1 ( 3 )          OTA: 3.27
Awards and Decorations ( per DD 214):

Periods of UA : 19891003-19891016 (13 days)
19910401-1910429 (28 days)
19910827-19911015 ( 49 days)
19920422-19920708 (77 days )

NJPs :
         19891107 : Art icle 86 (U A)
Awarded: Susp ended:

         19910520 : Art icle 86 (U A)
Awarded: Susp ended:

Retention Warnings: .
         19881209 : For non-swim qualified .
         1991052 1 : For unauthorized absence .

NDRB Documentary Review Conducted (date):        20061025
NDRB Documentary Review Docket Number:   ND06-00320
NDRB Documentary Review Findings:                 No change warranted.

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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:

Related to Post-Service Period (cont):

         Family/Personal Status:          Community Service:                References:

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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 August 1991 until 4 March 1993, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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).

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1. Personal Problems /medical condition .
2. In - service conduct .
3. Post service conduct.

Decision

Date: 2008 0903    Location: Washington D.C        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL .

Discussion

Issue 1: ( ) . Th e Applicant contends his problems in the Navy can be attributed to his personal financial problems and his subsequent post service bipolar diagnosis. 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. A review of the available medical and service records did not support the Applicant’s claim. While he may feel his financial issue and mental health condition were the underlying cause of his misconduct the evidence of record did not show that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Board determined an upgrade would be inappropriate.

:( ) 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 .

: ( ) . The Applicant implies his in-servi ce conduct mitigates his misconduct. In the course of the review, consideration is given to overall performance and conduct . The Applicant’s record of service was marred by numerous periods of UA, 2 retention warnings, and 2 NJP’s for violations of the U niformed C ode of Military Justice (UCMJ): Article 86 (UA) . The Applicant continued to enter into a status of UA even after being disciplined two previous times for this behavior . For the Applicant’ s edification, his subsequent violations of Article 86 , both exceeding 30 days, are considered serious offenses punishable by a bad conduct or dishonorable discharge and up to imprisonment if adjudicated and awarded as part of a sentence by a special or general court-martial . The command did not pursue a punitive discharge but opted instead for an administrative discharge.

The Applicant has requested a characterization upgrade to “General (Under Honorable Conditions)”. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An “U nder O ther T han H onorable ” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board agreed the numerous period of UA, to include the 2 periods which exceed 30 days, are a significant departure from conduct expected from a Sailor. The Board determined an upgrade or change would be inappropriate.

: ( ) The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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 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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; documentation of community or church service ; certification of non-involvement with civil authorities ; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an

u nfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

The Applicant provided a n earnings statement from August 2008 from Veolia Transportation Services, a Commercial Drivers License, and a continuing education certificate from the Community College of Southern Nevada for Basic Cooking as evidence of post-service accomplishments. While t he Board commends the Applicant’s post-service accomplishments, it found these efforts did not mitigate the misconduct which caused this discharge. Again, the Board determined an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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 other medical related reasons. 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 | ND0701219

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