Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900039

Original file (ND0900039.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20081003

Characterization of Service Received:

Narrative Reason for Discharge: MISCONDUCT DUE TO

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20030709 - 20030713     Active:

Period of Service Under Review:
Date of Enlistment: 20030714     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050228      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : SCM: SPCM: CC:

NJP :
- 20031002 :       Art icle 92 ( Failure to obey a lawful general order )
         Article 117 (Provoking speech )
         Article 128 (Assault consummated by a battery)
         Awarded : Susp ended :

- 20041022 :       Article 86 ( Failure to go at time prescribed )
         Article 9 1 ( Disrespect toward a Petty Officer )
         Article 91 (Disobey a lawful order)
         Awarded : Susp ended :

- 20050204 :       Article 86 ( UA 0700, 20050124 to 0800, 20050125 )
         Article 111 (Reckless operation of a vehicle)
         Awarded : Susp ended:

Retention Warning Counseling :

- 20031002 :       For OIC’s NJP of 20031002 for VUCMJ, Article 92, failure to obey a lawful general regulation, on or about 20030818, fail to obey a general regulation, to wit: SECNAVINST 5370.26C, by touching another recruit in an inappropriate manner; Article 117, Provoking speech, on or about 20030806, use provoking words towards another recruit while yelling; and Article 128, Assault consummated by a battery, on or about 20030806, by unlawfully pushing another recruit on the body with his hands.

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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT

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 .

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

Applicant’s Issues

1. Request a change in RE Code for reenlistment purposes.
2. Young and irresponsible.
3 . Discharge based on false allegations.

Decision

Date: 20 0 9 0212 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT DUE TO A PATTERN OF MISCONDUCT .

Discussion

: The Applicant is requesting his RE Code changed for reenlistment purposes. 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 Reenlistment/RE Codes for additional information regarding .

: ( ) . The Applicant contends his discharge should be upgraded because he was young and irresponsible at the time he committed the misconduct. The Applicant also contends his discharge was based on false accusations. He provided no documentary evidence for the Board’s consideration. 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 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 three NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( U A); Article 91 ( Insubordinate conduct ); Article 92 (F ailure to obey a lawful order ); Article 111 ( Reckless operation of a vehicle ); Article 117 (P rovoking speeches and/or gestures ) and Article 128 (A ssault consummated by a battery ) . The Applicant's misconduct is clearly documented. There was no evidence in the record or presented by the Applicant to support his contention the discharge was based on false accusations. Additionally, there is no indication he was not responsible for his conduct and should not be held accountable based on youth or immaturity . He also acknowledged and waived his rights to an administrative review. Based on the frequency and seriousness of the offenses committed and lack of post service documentation , the Board determined the discharge characterization as “U nder O ther T han H onorable C onditions ” was appropriate. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the requirements of his contract and is not indicative of those U.S. Sailors in receipt of a “General (Under Honorable Conditions)” discharge characterization; 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 | 2009_Navy | ND0900039

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