Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801712

Original file (ND0801712.rtf) Auto-classification: Denied

ex-HMC, USN

Current Discharge and Applicant’s Request

Application Received: 20080812
Characterization of Service Received: GENERAL UNDER HONORABLE CONDITIONS

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: U S N R          19860604 - 19881011     Active:          19881021 - 19930228
         USNR 19881012 - 1988102 0 HON                   19930301 - 19980813
                                                                        19980814 - 20031026

Period of Service Under Review:
Date of Enlistment: 20031026      Period of E nlistment : Years Extension Date of Discharge: 20050802
Length of Service : Y ear M onth s 07 D a ys         Education Level: Age at Enlistment:
AFQT: 74          Highest Rank /Rate : HMC            Fitness R eports:
Awards and Decorations ( per DD 214):      P istol (4) (3) (2) (2) (2) (3) FMFSR KLM KLM (Kuwait) JMC

Periods of UA /C ONF :

NJP :
- 20040730 : Art icle 92 (Derelict in the performance of duties )
Article 107 (False official statement)
Article 86 ( UA, a bsent from appointed place of duty)
Awarded : Susp ended : .

S CM : SPCM: C C : Retention Warnings:

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19881020 UNTIL 20031026 ”

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

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ 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:

Related to Post-Service Period (cont) :

        Additional Statements :
From Applicant:        From Representat ion :    From Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, 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 107-False official statement.

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

Applicant’s Issues

1. Seeking upgrade to transfer to fleet reserve and have all retirement benefits authorized; also wants time in service corrected.
2. Did not make a false statement or take medication written for another person.

Decision

Date : 20 08 1121 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE) .

Discussion

: The Applicant is seeking an upgrade in the characterization of service with transfer to the fleet reserve and authorization to receive all retirement benefits. 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 , for additional information regarding .

In regard to the correction of time in service and transfer to the Fleet Reserve, the NDRB does not have the authority to review these types of request ; o nly the Board for Correction of Naval Records can make this type of change. The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

: ( ) . The Applicant admits he was properly punished for being UA fro m his post as well as derelict in the performance of dut ies . However, he contends he did not make a false statement or take medications belonging to another person. He submits no documentation other than a personal statement. I n 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 a finding of guilt at NJP proceeding on 30 July 2007 for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 ( U A), Article 92 ( Dereliction of duty ) , and Article 107 ( False official statement ) . These are serious charges which could have resulted in a punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The comm and did not refer the Applicant for a punitive disc h a r ge but conduct an administrative discharge board instead. T he Applicant went before an administrative separation board on 14 January 2005 and by a vote of 3:0 was found guilty of the commission of a serious offense as evide nced by excessive use of a prescribed medication, unlawfully prescribing himself medication and making a false statement that 90 tablets of the medication were to be used for a field exercise, which was totally false. The review by the administrative separations board was not convinced by the Applicant’s testimony that he was innocent of those charges and t here has been no substantial evidence presented to the NDRB by the Applicant to refute the Applicant’s contention he did not make a false statement or take the medications as charged.

The Applicant has requested an upgrade in his discharge characterization to “Honorable”. W hen 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 “H onorable ” 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. As identified above, the Applicant’s misconduct is not accepted conduct from a U. S. Sailor with the number of years of service he possessed and the knowledge he had of Navy core values. The Board has determined t he awarded discharge characterization was appropriate and 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 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 | ND0801712

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