Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900025

Original file (ND0900025.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20081001

Characterization of Service Received: OTHER THAN 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: US N R (DEP)      19971223 - 19980113     Active:

Period of Service Under Review:
Date of Enlistment: 19980114     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010831      Highest Rank/Rate: SN
Length of Service : Y ear s M onth s 09 D a ys
Education Level:        AFQT: 31
Evaluation M arks: Performance: 3.0 ( 2 ) Behavior: 2.0 ( 2 ) OTA: 2.58

Awards and Decorations ( per DD 214):      (2) LOC

Periods of UA /C ONF : UA 20010813-20010830 (17 days)

NJP :
- 20000802 :       Art icle 91 ( Failure to obey a lawful order )
         Article 95 (Resisting apprehension)
         Article 109 ( Willfully and wrongfully damage private property)
         Article 128 (Assault, consummated by a battery against a First Class Petty Officer )
         Article 134 (Drunk and disorderly)
         Awarded : Susp ended :

- 20000810 :       Article 86 ( UA, f ailure to go at time prescribed to restricted personnel muster )
         Article 107 (False official statement)
         Awarded : Susp ended :

- 20000912 :       Article 86 ( UA, f ailure to go to restricted personnel muster ) , 2 specifications
         Awarded : Susp ended:
S CM :

- 20010628 :       Art icle 86 (UA 20010330 until apprehended 20010607 (69 DAYS) )
         Article 112a ( Drug use, w rongful use of marijuana)
         Sentence :
SPCM:

C C :
- 200009 19 :       Offense: Suspended driver's license.
                  Disregard red light.
         Sentence : $50.00 fine plus $40.00 court cost
                  $100.00 fine plus $2.00 court cost

- 20010125 :       Offense: Speeding (74/55), show cause contempt
         Sentence : $57.00 fine plus $40.00 court cost

Retention Warning Counseling :

- 19980116 :       For consumption of alcohol by a minor, 6/97, Harrison CO., WV, Paid $250.00/10 days in jail.

- 20000803 :       For you appeared before the Commanding Officer on 20000802 for disobeying a lawful order from a First Class Petty Officer, resisting apprehension by shore patrol, assaulting a First Class Petty Officer, destruction of private property, and drunk and disorderly.

- 20000915 :       For you appeared before the Commanding Officer on 20000912 for unauthorized absence.

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

Oth er Documentation :

Pertinent Regulation/Law

A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until
21 August 2002, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse

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 ( UA ) ; Article 91 (Failure to obey a lawful order ) ; Article 95 (Resisting apprehension) ; Article 107 (False official statement) ; Article 109 (Willfully and wrongfully damage private property); Article 112a (Drug use) ; Article 128 (Assault, consummated by a battery) ; and Article 134 (Drunk and disorderly).

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

Applicant’s Issues

1. Better his life for himself and wife .
2. Post-service conduct .

Decision

Date : 20 0 9 0205 Location: Washington D.C . R epresentation :

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

Discussion

: ( ) . The Applicant contends he is entitled to a discharge upgrade because he is trying to better his life for himself and wife . 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 three retention warnings, three NJP ’s , two CC ’s and one SCM for violation s of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA and f ailure to go at time prescribed to restricted personnel muster) , five specifications; Article 91 (Failure to obey a lawful order ); Article 95 (Resisting apprehension); Article 107 (False official statement) ; Article 109 (Willfully and wrongfully damage private property); Article 112a (Drug use, wrongful use of a controlled substance, marijuana) ; Article 128 (Assault, consummated by a battery against a First Class Petty Officer); and Art icle 134 (Drunk and disorderly) . The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge in spite of the numerous and frequent violations of UCMJ Articles but instead opted for an administrative discharge.

The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)” to better his life. The Board acknowledges the fact the Applicant wants to better his life for both himself and his wife, however; he has failed to provide any documentation in support of his request. The desire for a better life, by itself, is not sufficient reason for the Board to warrant an upgrade. 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 “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 Board determined the Applicant’s excessive misconduct reflects a significant departure from conduct expected of a U. S. Sailor and without any additional documentation or explanation from the Applicant in support of his request the awarded discharge is appropriate; an upgrade would be inappropriate.

Issue 2: (Equity) RELIEF NOT WARRANTED. 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. 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 during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a

case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides his statement about attending school on the Applicant DD Form 293, no additional documentation was provided for review. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented . The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the numerous and varied UCMJ violations involved , and based on the lack post service documentation provided an upgrade would be inappropriate. Should the Applicant obtain additional documentation he feels would w arrant a personal appearance, there are veteran’s organizations, such as , but not limited to, the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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 | 2009_Navy | ND0900025

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