Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900339

Original file (ND0900339.rtf) Auto-classification: Denied

ex-EO3, USN

Current Discharge and Applicant’s Request

Application Received: 20081202

Characterization of Service Received:

Narrative Reason for Discharge: COMMISSION OF A SERIOUS OFFENSE

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20021114 - 20030922     Active:

Period of Service Under Review:
Date of Enlistment: 20030923     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070720      Highest Rank/Rate: EO3
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.50

Awards and Decorations ( per DD 214):      GCA SSDR ICM

Periods of UA /C ONF :

NJP :
- 20040212 :       Art icle 92 ( Failure to obey order or regulation)
         Awarded : Susp ended :

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 2004212 :        For violation of UCMJ Article 92, Failure to obey order or regulation .

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 :

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

Applicant’s Issues

1. Employment opportunities.
2. Court-m artial was denied.

Decision

Date : 20 0 9 0521 Location: Washington D.C . R epresentation :

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

Discussion

: 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 , regarding .

: ( ) . The Applicant contends his discharge should be up graded because he was not given a fair chance to fight his charge and was denied a court-m artial. 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 one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 ( F ailure to obey order or regulation – underage drinking).
The Applicant was also charged with violation o f the UCMJ: Article 121 (Larcen y − 1/2 cara t Princess- cut diamond ring valued at $1499) , but was not referred to either NJP or court-martial . Violation of Article 121 is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial. The Appl icant admitted to stealing the ring, but only after it was found rolled up in a sock located in his duffle bag. He committed larceny when he knowingly stole the diamond ring from his fellow roommate. Members may be separated based on commission of a serious military or civilian offense when specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge per the Manual for Courts-Martial, Appendix 12 , for the same or closely related offense . Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. If a service member demands trial by court-martial, the nonjudicial proceedings shall be terminated. However, i t is within the discretion of the commander whether to f orward or refer changes for tria l by court-martial. The command er did not refer the Applicant for a court- martial but opted instead for an administrative discharge. Based on the record of evidence, the Board determined the awarded discharge was appropriate, and an upgrade would be inappropriate.

For the Applicant’s edification, 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 the Applicant’s DD Form 293, the Applicant provided no post-service documentation for review. 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. Should the Ap plicant feel his post- service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as 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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION 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 s of the UCMJ, Article 92 (Failure to obey order or regulation) and Article 121 (Larceny).

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 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 Board for Correction of Naval Records (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 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 NDRB 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 NDRB B oard 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

Similar Decisions

USMC | DRB | 2012_Marine | MD1200184

Original file (MD1200184.rtf) Auto-classification: Denied

Based on the offenses committed by the Applicant, command administratively processed for separation. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the...
NAVY | DRB | 2011_Navy | ND1100862

Original file (ND1100862.rtf) Auto-classification: Denied

: (Decisional) (Board Issue) (Equity) During the NDRB’s review of the Applicant’s request for an upgrade, the NDRB identified an impropriety in her dischargein that she did not meet the requirement for separation according to MILPERSMAN Article 1910-138, Separation by Reason of Misconduct - Minor Disciplinary Infractions, dated 22 Aug 2002 to 25 April 2005.Pursuant to MILPERSMAN Article 1910-138, “Members may be processed for separation based upon a series of at least three, but not more...
NAVY | DRB | 2011_Navy | ND1100391

Original file (ND1100391.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to qualify for government employment.2. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole...
NAVY | DRB | 2009_Navy | ND0900782

Original file (ND0900782.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20010224 - 20010530Active: 20010531 – 20030929 HON Period of Service Under Review: Date of Enlistment: 20030930Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20061003Highest Rank/Rate: ET2Length of Service: Year(s)Month(s)03 Day(s)Education Level:AFQT: 73EvaluationMarks:Performance:2.5(4)Behavior:2.6(6)OTA: 2.45Awards and Decorations (per...
NAVY | DRB | 2011_Navy | ND1101206

Original file (ND1101206.rtf) Auto-classification: Denied

The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ):Article(,, 0730 - 0815, 10 October 2008), Article (,, wrongfully using government credit card to obtain cash and merchandise), and Article (Wrongful appropriation, , steal money from property of Bank of America in the amount...
USMC | DRB | 2009_Marine | MD0901319

Original file (MD0901319.rtf) Auto-classification: Denied

By a vote of the Narrative Reason shall COMMISSION OF A SERIOUS OFFENSE.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. ” 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...
NAVY | DRB | 2008_Navy | ND0801881

Original file (ND0801881.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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 Representation:From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...
NAVY | DRB | 2012_Navy | ND1200390

Original file (ND1200390.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants to be eligible for education benefits.2. Representation: 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...
NAVY | DRB | 2009_Navy | ND0902523

Original file (ND0902523.rtf) Auto-classification: Denied

Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” 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...
NAVY | DRB | 2007_Navy | ND0701100

Original file (ND0701100.rtf) Auto-classification: Denied

Sentence - Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900339

Similar Decisions