Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900093

Original file (ND0900093.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20081015

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN 3630600 (COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19910523 - 19910528     Active:

Period of Service Under Review:
Date of Current Enlistment: 19910529     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19931008      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.2 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 3.40

Awards and Decorations ( per DD 214):

Periods of UA : 0600 – 1700, 19930903 ( 11 hours); 0600 – 0715, 19930908 ( 1 hour )

NJP :
- 19921130 :       Article 121 ( Larceny and wrongful appropriation of Ortho Monistat C ream valued at $16.00 from NEX )
         Awarded : Susp ended :

- 19930805 :       Article 92 ( Failure to obey a lawful order )
         Article 123a (Making drawing or uttering check, draft or order without sufficient funds)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19930524 :       For failure to pay just debts.

- 19930903 :       For u nauthorized absence.

- 19930908 :       For u nauthorized absence .

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 /To Representat ion :          From /To Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 July 1994, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92, 121 and 123a.

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

Applicant’s Issues

1. Applicant seeks p ost - service conduct consideration .
Decision

Date: 20 0 9 1102 Location: Washington D.C . R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. 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 reflects NAVPERS 1070/613 (Page 13) warnings for unauthorized absences and failure to pay just debts , and nonjudicial punishments ( ) for o f the U niform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a lawful order not to enter the Navy Exchange (NEX) for six months) , Article 121 ( Larceny of Or tho Monistat Cream from the NEX valued at $16.00 ) , and Article 123 ( Making, drawing or uttering a check in the amount of $13.00 without sufficient funds ) . Based on the offense(s) committed by the Applicant, command administratively processed for separation . When notified for a dministrative s eparation p rocessing, the Applicant elected right s to consult with qualified counsel , submit a written statement , and waived an a dministrative b oard .

: (Decisional) ( ) . The Applicant made a personal appearance without a representative and requested an upgrade to General (Under Honorable Conditions) based on her post - service conduct. She contends that since being discharged she has been raising her 13 year daughter, obtained a Nurs ing Assistan t License, work ed two jobs for the past 5 years , and was recently recognized for her excellent work performance. The Applicant submitted a statement from her employer, copy of her license and pay stubs as evidence of her post service conduct. Additionally, the Applicant apologized to the NDRB for her misconduct during her time in the Navy. She testified that she was experiencing financial difficulties when she wrote the bad check to pay for gas , and that she took the Monistat Cream for medical purposes after being told by her doctor that she was being seen to o frequently. The Applicant’s medical records do indicate that she had been seen on several occasions for vaginal discomfort. Taking into consideration the Applicant’s in-service performance as evidenced by her overall trait average of 3.40 on a 4.0 scale, her post-service accomplishments , and the mitigating circumstances relat ed to the offenses committed by the Applicant, the NDRB voted unanimously to upgrade the characterization of discharge to General (Under Honorable Conditions).

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found However, based on the Applicant’s post service conduct and mitigating circumstances , the awarded characterization of service shall . However, the narrative reason for separation shall remain .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance or completion of higher education (official transcripts); 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | ND0900093

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