Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800115

Original file (ND0800115.rtf) Auto-classification: Denied

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20071031

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19900515 - 19900725              Active:
Period of Service Under Review:
Date of Enlistment: 19900726      Period of enlistment : Years Extension          Date of Discharge: 19940506
Length of Service : Yrs Mths 11 D ys      Education Level:         Age at Enlistment:       AFQT: 42
Highest Rank /Rate :       Evaluation marks: Performance: 3.0 ( 2 )     Behavior: 2.9 ( 2 )          OTA: 3.30
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA /C ONF : 19930407 – 19930409; 19930411 – 19930413; 19930423 – 19931007 (UA)

NJPs :
         19911126 : Art(s) 86, 107, 134 (2 specs, bad checks) . Awarded - CCU Susp -
         19921016 : Art(s) 91, 92 . Awarded - Susp -

Retention Warnings: .
         19910923 : For habitual tardiness, inattention to detail, numerous outstanding checks .

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 f rom 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. Misconduct due to being young and making bad decisions
2. Positive aspects of service warrant general discharge
3 . Post-service conduct

Decision

Date: 20 08 0214 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 Applicant contends his disciplinary problems were the result of being young and making bad decisions. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized.

Issue 2 ( ). A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Applicant’s service was marred by a retention warning; 2 nonjudicial punishments for violations of the Uniform Code of Military Justice, Articles 86, 91, 92, 107 and 134 (bad checks) ; and a period of unauthorized absence of over 5 months in violation of Article 86 while pending other charges of unauthorized absence, failure to obey order or regulation in violation of Article 92 and illegal use of cocaine and marijuana in violation of Article 112a , during which period the Applicant also missed ship’s movement in violation of Article 87. Violations of Articles 86, 87, 91, 92, 107, 112a and 134 are considered serious offenses for which each alone a punitive discharge is authorized upon conviction at special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.

Issue 3 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

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. The Board noted in this case that the Applicant’s DD 214 indicated that the authority for his discharge was MILPERSMAN 3630650, Procedures for Processing Enlisted Personnel for Separation in Lieu of Trial by Court-Martial, but his SPD Code, HKA, was for Separation of Enlisted Personnel by Reason of Misconduct - A Pattern of Misconduct (board waived). In addition, the record indicates that prior to his last period of unauthorized absence, the Applicant was charged with unauthorized absence, failure to obey order or regulation, and illegal use of cocaine and marijuana. Because the record did not contain copies of documents related to the Applicant’s discharge, the Board could not determine with certainty for which of these reasons the Applicant was discharged.

However, the Board did determine that the record factually supported each of these reasons for discharge, that discharge was appropriate for the Applicant’s misconduct, and that a characterization of service as under other than honorable conditions was warranted by the misconduct clearly documented in the record. The Board found no prejudice to the Applicant as a result of the administrative inconsistencies on his DD 214. 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

Pertinent Regulation/Law

A . Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 21 Jul 94, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

C . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE .

D . 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 .

E . 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, Articles 86, 87, 91, 92, 107, 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 | 2008_Navy | ND0800115

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