Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900757

Original file (ND0900757.rtf) Auto-classification: Denied

ex-DC3, USN

Current Discharge and Applicant’s Request

Application Received: 20090218
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:        USNR (DEP)       19971231 - 19980114     Active: 19980115-20020113

Period of Service Under Review:
Date of Enlistment: 20020114      Age at Enlistment: 23
Period of Enlistment : Years Extension
Date of Discharge: 20040702       Highest Rank/Rate: DC3
Length of Service: Year(s) Month(s) 19 D ay(s)
Education Level:         AFQT: 35
Evaluation Marks:        Performance: 3.00 (4)    Behavior: 2.25 (4)       OTA: 2.68

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

Periods of UA/CONF:

NJP: 1
- 20031205 : Article 107 (False official statement)
Awarded: NFIR Suspended: NFIR

SCM: SPCM: CC: Retention Warning Counseling: NFIR

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/Medical Record:                  Other Records:
                                                                                          VA Rating Decision of 17 Sep 08
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 NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Raped and sexually assaulted which affected his performance.

Decision

Date: 20090514 Location: Washington D.C. R epresentation : Dakota County Vet. Serv.

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

Discussion

: ( ) . The Applicant contends “the issues that lead to my General Discharge centered squarely on the rape and sexual assault I endured aboard ship [USS ENTERPRISE (CVN-65)]. I was ashamed, scared and embarrassed to say anything on active duty. But, my conduct aboard ship was due to the rape.” “If not for the rape, I would have performed admirably.” The Applicant is stating that his misconduct aboard CVN-65 affected his discharge characterization. For the edification of the Applicant, each period of enlistment is an independent obligation and characterization is determined for that specific period of time. Although his DD Form 214 shows the date entered active duty from his first enlistment and since he did not complete his service obligation, his characterization should have been based only on his second enlistment. The Board determined his three NAVPERS 1070/613 (Page 13) warnings, two NJPs, and one period in the Correctional Custody Unit in Norfolk, VA, during his first enlistment are irrelevant to his contention and will focus only on his second enlistment period. 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 during this enlistment , his second, was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statement). This violation is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Certain serious offenses warrant separation from the naval service to maintain proper order and discipline. T he command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.

The Applicant reenlisted while serving onboard CVN-65 on 14 January 2002, and transferred to RESOLUTE (AFDM-10) and then to DYNAMIC (AFDL-6) . When he departed CVN-65, his detachment Evaluation Report and Counseling Record states, “Although he discontinued his attendance at the anger management sessions, [the Applicant] appears to have learned how to control his temper and stress levels. ” No adjudicated misconduct was noted until his NJP on 5 December 2003 while he was serving onboard DYNAMIC (AFDL-6) . No further information was available to the NDRB explaining the Applicant’s December 2003 NJP for violation of Article 107. Based on the DD Form 214, the Applicant was involuntary separated by reason of misconduct – commission of a serious offense and waived his right to a board. Although the Applicant provided in-service documentation of his service and medical records and a copy of The Department of Veterans Affairs, St. Paul Regional Office, Rating Decision of 17 September 2008, nothing further expounded why he was involuntarily separated. Since the NDRB could not fully evaluate the Applicant’s misconduct, the Board relies on a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any documented evidence for the Board’s consideration, to support the contention the Applicant deserves an upgrade in characterization. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Board determined the awarded characterization 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; 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 provided no post-service documents or evidence on his behalf. 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. The Board determined the awarded characterization of service received, General (Under Honorable Conditions), was an appropriate characterization considering the length of service and the UCMJ violation involved, and without any post-service documentation an upgrade would be inappropriate.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 107 (False official statement).

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, provided 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 granted 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.

Employment/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 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 | ND0900757

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