Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801184

Original file (ND0801184.rtf) Auto-classification: Denied

ex-MA1, USN

Current Discharge and Applicant’s Request

Application Received: 20080506
Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN 1910-700 (SEPARATION AUTHORITY) (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19921109 - 19930725                 Active:          19930726 - 19970116
                                                                       19970117 - 20020930
Period of Service Under Review:
Date of Enlistment: 20021001      Period of Enlistment : Years Extension         Date of Discharge: 20070427
Length of Service: Years Months 27 D ays        Education Level:         Age at Enlistment:       AFQT: 68
Highest Rank/Rate: MA1    Evaluation Marks: Performance: 4.7 ( 6 )   Behavior: 4.2 ( 6 )        OTA: 4.22
Awards and Decorations (per DD 214): Rifle Pistol (2) (6) (4) (2) ESWS

Periods of UA/CONF: UA: 0730, 20051007 - 1000, 20051108 (32 days, 2 hours, 30 minutes);
0630, 20051123-20070416 (510 days) [Partially extracted from DD Form 214].

NJPs:

SCMs:

SPCMs:

CC:

Retention Warnings: .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MILPERSMAN 1910-106 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

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 Representation:              From Member of Congress:
Other Documentation (Describe):

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

Applicant’s Issues

1. Improve employment opportunities.
2. Service merited a better discharge.

Decision

Date: 20080918 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of the Narrative Reason shall SEPARATION IN LIEU OF COURT MARTIAL .

Discussion

: The Applicant is a new father and he wants to upgrade his discharge so he can better provide for his family. 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, specifically the paragraph concerning regarding .

: ( ) . The Applicant claims his record of service was outstanding and supports this by listing his awards, accomplishments and evaluations received. The Applicant implies his prior service should mitigate his misconduct. 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 Applicant’s record of service was marred by two extended periods of unauthorized absence (UA) - one for 35 days and the other for approximately 510 days, and failure to obey a lawful order. Violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence) and Article 92 (Failure to obey a lawful order) are considered serious offenses for which a punitive discharge is authorized and confinement up to six months if adjudged by a Special or General Courts Martial. In this case, the Applicant asked for administrative separation in lieu of court martial and agreed to accept an “Other Than Honorable” characterization of discharge.

The Applicant states he went UA to care for a child of his which the mother abandoned. He states he did not contact his chain of command because he was too embarrassed to ask for assistance and “did not want to interfere personal life with work”. The Applicant had over 13 years of active service in the Navy before he went UA. He knew the obligation and duty he had to his unit and what was expected from someone with his level of experience and grade. With over 13 years of active Naval service experience he should have known what family services were available to him and what administrative options he had, such as seeking help from Navy Relief or Family Advocacy, requesting a Humanitarian Transfer, or requesting a hardship discharge based on being a single parent. There is no evidence in the record, nor does he provide any, to indicate any of these services or options were explored prior to his entry into a UA status. He willingly failed to adhere to the Naval standards of conduct expected of a Sailor of his rank and longevity.

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. An “Under Other Than Honorable” 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 Applicant’s misconduct represents significant departure from the conduct expected from a service member at his grade and the Board determined the Applicant’s request to be administratively separated in lieu of a court martial was appropriate and a n upgrade to honorable 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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C. 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, provided 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 granted 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.

Employment/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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | ND0801184

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