Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900498

Original file (ND0900498.rtf) Auto-classification: Denied

ex-OSSN, USN

Current Discharge and Applicant’s Request

Application Received: 20081230

Characterization of Service Received:

Narrative Reason for Discharge: COMMISISON 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)      19990916 - 20000501 ELS          Active: 200008 0 1 – 20040129 HON
Inactive: USNR (DEP) 20000629 - 20000731

Period of Service Under Review:
Date of Enlistment: 20040130     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061020      Highest Rank/Rate: OS 2
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.2 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.10

Awards and Decorations ( per DD 214):      NDSM SSDR GWOTSM GWOTEM

Period of UA : 20060810-20060822

NJP :
- 20060614 :       Art icle 92 ( Failure to obey order or regulation )
         Article 107 (False official statement)
         Awarded : Susp ended :

- 20060825 :       Article 86 ( UA ) , 2 specifications
         Article 87 (Missing movement)
         Article 92 (Failure to obey order or regulation)
         Article 134 (Restriction breaking)
         Awarded: Susp ended :

S CM : SPCM: C C : Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000801 TO 20040129 ”
         The NDRB will recommend to the Commander, 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), 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 of the UCMJ : Article 87 ( Missing s hip’s movement ); Article 92 ( Failure to obey order or regulation ) and Article 134 ( Breaking restriction ) .

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

Applicant’s Issues

1. Having thoughts of rejoining the Navy.
2. One isolated incident in six years of service.
3 . Experiencing a great deal of stress and depression related to being separated from family.

Decision

Date: 20 0 9 0326 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT DUE TO THE COMMISSION OF A SERIOUS OFFENSE .

Discussion

: The Applicant is having thoughts of rejoining the Navy and is therefore seeking an upgrade in the characterization of service. 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 .

: ( ) . In seeking an upgrade in the characterization of service, the Applicant contends his discharge was inequitable because it was based on one isolated incident in six years of service . The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and/or characterization of service, if such a 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 service record is marred by an award of NJP on 14 June 2006 and 25 August 2006, for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( U A), 2 specifications ; Article 87 ( Missing ship’s movement ); Article 92 ( Failure to obey an order or regulation ), 2 specifications; Article 107 ( False official statement ) and Article 134 (Breaking r estriction ), thus substantiating the misconduct for which he was separated .

For the edification of the Applicant, a n “Honorable” characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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 Board determined based on the number , frequency, and seriousness of the offenses committed an upgrade to “H onorable ” or “General (Under Honorable Conditions) ” is not warranted. The in-service performance, character references and personal statement of the Applicant were considered by the Board and deemed not sufficient to mitigate the misconduct. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant is also seeking a change in the narrative reason and contends he was experiencing a great deal of stress and depression due to being separated from his family (mother and young son). The Applicant submitted medical documentation of his admission to the Naval Medical Center San Diego, Psychiatric Unit on 23 -24 August 200 6 for the Board’s consideration . The medical record indicates the Applicant successfully attended all groups and was released based on his low risk for impulsive behavior and mental stability at the time of discharge. The Applicant was diagnosed with Depressive Disorder and alcohol abuse and recommended for outpatient treatment. The psychiatrist also noted the command was aware and endorsed the plan to refer the Applicant to SARP for an evaluation and subsequent treatment. The p sychiatrist found the Applicant fit for full duty. The Board considered the previously mentioned misconduct of the Applicant

and medical information and determined he was justifiably separated for misconduct due to the commission of a serious offense. The Applicant was evaluated by a psychiatrist who did not recommend him for discharge due to depression , but found him fit for duty. Based on the aforementioned evidence , the Board determined the narrative reason of misconduct due to the commission of a serious offense was appropriate and therefore, the Applicant’s request is denied.

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 | ND0900498

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