Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900139

Original file (ND0900139.rtf) Auto-classification: Denied

ex-AMAA, USN

Current Discharge and Applicant’s Request

Application Received: 20081024

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)      20020425 - 20020725     Active:

Period of Service Under Review:
Date of Enlistment: 20020726     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070118      Highest Rank/Rate: AMAN
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 68
Evaluation M arks:         Performance: 2.6 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 2.44

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : SCM: SPCM:

NJP :
- 20030807 :       Art icle 92 ( Failure to obey order or regulation )
         Awarded : Susp ended :

- 20061120 :       Article 86 ( UA )
         Article 9 2 ( Failure to obey order or regulation )
         Awarded : 30 DAYS CCU Susp ended :

- 20070110 :       Article 1 34 ( Negligent discharge of firearm )
         Article 8 6 ( UA )
         Awarded : NFIR Susp ended: NFIR

Arrest :
- 20070103 :       Offense: Reckless endangerment- one felony count; one misdemeanor count, Criminal Possession of a Weapon; one felony count; one misdemeanor count; Possession of Ammunition; and Unlawfully Discharge Small Arms.
         Sentence : Pending court date 20070305

Retention Warning Counseling :

- 20030819 :       For CO’s NJP of 20030807 for violation of the UCMJ, Article 92, failure to obey an order or regulation by permitting underage female to remain in the NAS Fallon barracks beyond curfew.

- 20040217 :       For unauthorized use of the command internet capabilities in regards to viewing, forwarding and storage of unauthorized material via the command’s local area network.

Retention Warning Counseling :

- 20061120 :       For NJP of 20061120 for 2 specifications of violation of the UCMJ, Article 86 and violation of the UCMJ, Article 92.

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), Change 11, effective 26 April 2005 until Present, 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. Improper discharge.
2. Post service conduct.
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 PATTERN OF MISCONDUCT .

Discussion

: ( ) . The Applicant contends his discharge characterization should be upgraded because the charges which served as the basis for his discharge were incorrect and , with the exception of one charge, all of the other civilian charges pending against him were dropped. 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 one retention warning and three NJP ’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( U A); Article 92 ( Failure to obey an order or regulation ) and Article 134 ( Negligent discharge of a firearm ) .

There is no evidence in the record , nor provided by the Applicant , to support the allegation the charges were inc orrect. However, t he record does contain a personal statement of the Applicant to his chain of command admitting to making a “huge dumb mistake” and asking for one more chance. Furthermore, there is no indication he exercised his right to appeal the NJP’s within five days of the proceedings . In re sponse to the Applicant‘s argument all the civilian charges except one was dismissed, the military is not bound by decisions of the civilian courts in determining whether to administratively process an individual if there is a preponderance of evidence available to support the basis for which the service member is being separated. Based on a review of the record and evidence presented by the Applicant, the Board determined there was sufficient evidence to separate the Applicant due to a Pattern of M isconduct . Additionally, the characterization of service as “G eneral ( U nder H onorable C onditions) ” is appropriate based on the frequency and seriousnes s of the offense committed and absence of mitigating evidence ; an upgrade would be inappropriate .

: ( ) The Applicant contends since being discharged he has completed the Teterboro S chool of Aeronautics and is currently working . He has submitted certificates, character references and a letter from his employer for the Boards’ consideration. 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. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to support an 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 | ND0900139

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