Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900703

Original file (ND0900703.rtf) Auto-classification: Denied

ex-AGAA, USN

Current Discharge and Applicant’s Request

Application Received: 20090204

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)        19990930 - 19991004     Active:

Period of Service Under Review:
Date of Enlistment: 19991005     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030214      Highest Rank/Rate: AGAN
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 73
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 1.0 ( 3 )        OTA: 2.93

Awards and Decorations ( per DD 214):      (2) FLOC

Periods of UA /C ONF :

NJP :
- 20010 518 :       Art icle 92 ( Failure to obey order or regulation )
         Awarded : Susp ended :

- 20010711 :       Article 9 1 ( Insubordinate conduct )
         Article 92 (Failure to obey order or regulation)
         Article 95 (Resist apprehension/flight apprehension)
         Article 134 (Communicating a threat, disorderly conduct, drunkenness, and indecent language)
         Awarded : 30 DAYS Susp ended:

- 20021021 :       Article 9 1 (D isobey a lawful order )
         Article 134 (Drunk and disorderly)
         Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :

- 20000411 :       For article 92, failure to obey orders and regulations by drinking alcoholic beverages undeage
- 20010518 :       For violation of UCMJ Article 92, Underage drinking

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 .

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 91 ( Insubordinate conduct ) ; Article 91 (Disobey a lawful order) ; Article 92 (Failure to obey order or regulation) ; Article 95 (Resist apprehension/flight apprehension) ; Article 134 (Communicating a threat, d isorderly conduct, d runk and disorderly , d runkenness, and i ndecent language ) .

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

Applicant’s Issues

1. Record of Service (No specific issues) .

Decision

Date : 20 0 9 0507 Location: Washington D.C . R epresentation :

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

Discussion

: ( ) . The Applicant did not identify any specific Issues to the Board . However, the Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. 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 is marred by two retention warnings and three NJP’s for violation of the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct ) ; Article 91 (Disobey a lawful order) ; Article 92 (Failure to obey order or regulation) ; Article 95 (Resist ing apprehension/flight from apprehension) ; Article 134 (Communicating a threat , d isorderly conduct, d runk and disorderly, d runkenness, and i ndecent language). These are considered serious offenses , punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge, but opted instead for a dministrative discharge based on an established pattern of misconduct. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

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; attending 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant s statement on the DD Form 293, he failed to provide any additional documentation or evidence on his behalf. The Board applauds your efforts to stay sober and maintain your sobriety one day at a time. However, t o warrant an upgrade the Applicant’s post service efforts need to be more encompassing. 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 Applicant obtain additional evidence or post service documentation he may wish to apply for 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

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

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NAVY | DRB | 2009_Navy | ND0900703

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