Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900697

Original file (ND0900697.rtf) Auto-classification: Denied

ex-AGAN, USN

Current Discharge and Applicant’s Request

Application Received: 20090202

Characterization of Service Received:

Narrative Reason for Discharge: COMMISSION OF A SERIOUS OFFENSE

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)        19960329 - 19960520     Active:

Period of Service Under Review:
Date of Enlistment: 19960521     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991119      Highest Rank/Rate: AG3
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 3.05

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 19990714 :       Art icle 134 ( False s wearing ) , 2 specifications
         Awarded : Susp ended : Vacated 19990726

- 19990726 :       Article 1 2 8 ( Assault )
         Awarded : Susp ended:

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

- 19990714 :       For violation of UCMJ Article 134 , False swearing.

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 18, effective 12 December 1997 until
29 March 2000, 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 128 ( Assault ) and Article 134 ( False swearing ) .

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

Applicant’s Issues

1. Seeking upgrade for employment purposes.
2. Would like the reason for discharge changed.

Decision

Date: 20090507 Location: Washington D.C. R epresentation :

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

Discussion

: The Applicant is seeking an upgrade for employment purposes. 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 Employment/Educational Opportunities , for additional information regarding .

: ( ) . The Applicant has requested the narrative reason changed but does not provide justification or documentation to support th is request . 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.
The Applicant’s record of service was marred by one retention warning and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 128 ( Assault , fist fight with a Seaman ) and Article 134 ( False swearing ), 2 specifications. The Commanding Officer’s Administrative Separation letter of 29 November 1999 indicated the Applicant was administratively processed for misconduct due to commission of a serious offense and pat tern of misconduct based on this misconduct. The Applicant was notified of her rights pertaining to the administrative separation as outlined in the Administrative Board Procedure Notice of 5 Oc tober 1999 and elected an A dministrative Separation B oard (ASB). The ASB found by a vote of 3 to 0 the Applicant had committed misconduct due to the commission of a serious offense and established a pattern of misconduct. The A SB recommended the Applicant be discharged with a general (under honorable conditions). The commanding officer concurred and the Applicant was subsequently discharged based on misconduct due to the commission of a serious offense .

The preponderance of the evidence reviewed supports the basis for discharge due to commission of a serious offense, therefore the NDRB has determined the separation from the Naval service was appropriate. Additionally, the NDRB determined an upgrade to honorable is not appropriate in light of the seriousness of the offenses committed and lack of extenuating evidence. As such, the request to change the narrative reason and upgrade the characterization of discharge to honorable is denied.

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 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 | 2011_Marine | MD1100304

Original file (MD1100304.rtf) Auto-classification: 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 .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...
NAVY | DRB | 2005_Navy | ND0500989

Original file (ND0500989.rtf) Auto-classification: Denied

The Applicant requests that his characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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
NAVY | DRB | 2009_Navy | ND0901986

Original file (ND0901986.rtf) Auto-classification: Denied

On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is requested and justification for the request). 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...
NAVY | DRB | 2010_Navy | ND1002196

Original file (ND1002196.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. ” 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 purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2010_Navy | ND1000210

Original file (ND1000210.rtf) Auto-classification: Denied

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. Therefore, based on the offenses committed by the Applicant, command administratively processed for separation.When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a...
USMC | DRB | 2010_Marine | MD1001589

Original file (MD1001589.rtf) Auto-classification: Denied

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 . ” 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 | 2011_Navy | ND1101834

Original file (ND1101834.rtf) Auto-classification: Denied

Narrative Reason for Discharge:Authority for Discharge:MILPERSMAN3630600 [PATTERN OF MISCONDUCT] DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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.
NAVY | DRB | 2013_Navy | ND1300825

Original file (ND1300825.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to:OTHER Summary of ServicePrior Service: Inactive:USNR (DEP)19961213 - 19961226Active: Period of Service Under Review: Date of Current Enlistment: 19961227Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:19980820Highest Rank/Rate: AG3Length of Service: Year(s) Month(s) 24 Day(s)Education Level:AFQT: 86EvaluationMarks:Performance:3.5(2)Behavior:3.5(2)OTA: 3.50Awards and Decorations (per DD...
NAVY | DRB | 2012_Navy | ND1200067

Original file (ND1200067.rtf) Auto-classification: Denied

The Applicant contends his record of service warrants an upgrade. The civilian conviction provided the preponderance of the evidence that he committed a serious offense, he elected an ASB, the ASB determined he committed the offenses and recommended a General discharge, and the Separation Authority reviewed the findings and ordered the Applicant to be discharged. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...
NAVY | DRB | 2006_Navy | ND0600940

Original file (ND0600940.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. No indication of appeal in the record.961019: Applicant waived right to an administrative board conditioned upon being separated from naval service with an Honorable or General characterization.961019: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of...

Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900697

Similar Decisions