Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900088

Original file (ND0900088.rtf) Auto-classification: Denied

ex-CSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20081014

Characterization of Service Received:

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)      20030122 - 20030309     Active:

Period of Service Under Review:
Date of Enlistment: 2003031 0     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040419      Highest Rank/Rate: MSSN (E-3)
Length of Service : Y ear M onth 10 D a ys
Education Level:        AFQT: 38
Evaluation M arks: Performance: 3.0 ( 2 ) Behavior: 1.0 ( 2 ) OTA: 2.5

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : See NJP and SCM .

NJP :
- 20040225 :       Art icle 86 (UA), 3 specifications
                           - 20030107
                           - 20030108
                           - 20040130 - 20040202
         Awarded : Susp ended :

S CM :

- 20040326 :       Article 86 (Failure to go to appointed place of duty) , 2 specifications
         Art icle 91 (Disrespect to a Chief Petty Officer )
         Article 92 (Violation of a Lawful Order – missed restricted muster, smuggled a visitor onboard )
         Article 121 (Larceny – stole a cell phone and charger )
         Sentence :

SPCM: C C :

Retention Warning Counseling :

- 20040225 : For CO’s NJP of 25 Feb 2004, violation of the UCMJ, Article 86, Absence Without Leave
- 20040419: For not being recommended for reenlistment and assignment of reen listment code, RE-4, because of
misconduct due to a pattern of misconduct .

Administrative Corrections to the Applicant’s DD 214

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

         “ 03 MAR 10 ”
         “ 01 01 10 ”

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:
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 .

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 91, Article 92 and Article 121.

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

Applicant’s Issues

1. Seeking to reenlist in the California National Guard.
2. The Larceny charge should have been dismissed – pled guilty to get out of brig.
3 . Person conducting the NJP not qualified.

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 PATTERN OF MISCONDUCT .

Discussion

: The Applicant is seeking an upgrade in order to reenlist in the California National Guard. 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 s , for additional information regarding .

: ( ) . The Applicant contends while assigned to the USS JOHN C STENNIS, he was accused of committing larceny and confined to the brig. The Applicant further alleges he pleaded guilty to the larceny charge , which should have been dismissed , in order to get out of the brig and the person who conducted the NJP proceedings was not qualified. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. The Applicant’s record is marred by one NJP on 25 February 2004, for violation of the Uniform Code of Military Justice (UCMJ) : Article 86 ( U A) and one SCM on 26 March 2004, for violations of Article 86 ( U A); Article 91 ( Disrespect to a chief petty officer ); Article 92 ( Failure to obey a lawful order ) and Article 121 ( Larceny , theft of cell phone and charger ) . There is no evidence in the record, nor provided by the Applicant , to support his contention s the larceny charge should have been dismissed, he was coerced into pleading guilty and the officer conducting NJP was not qualified. Additionally, there is no evidence the Applicant appealed the NJP.

The evidence of record does reflect the Applicant was found guilty at a SCM for committing larceny and t he re was sufficient evidence to support separation due to a pattern of misconduct. Based on the seriousness and frequency of offenses committed and lack of mitigating circumstances, the Board determined the awarded discharge characterization was appropriate and an upgrade to “G eneral (U nder H onorable C onditions ) ” was not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, 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 | ND0900088

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