Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900816

Original file (ND0900816.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20090224

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19930726 - 19931228     Active:

Period of Service Under Review:
Date of Enlistment: 19931229     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970903      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.50

Awards and Decorations ( per DD 214):      CGSOSR

Periods of UA /C ONF :

NJP :

- 19950206 :      Article 91 (Contempt or disrespect toward warrant, noncommissioned, or petty officer)
         Awarded: Suspended:

- 19950818 :       Art icle 86 (U nauthorized absence)
         Awarded : Susp ended :

- 19970209 :      Article 134 (Drunken incapacitation for duty )
         Awarded : Susp ended: (Vacated 970307)

S CM :

SPCM:

C C :
- 19970705 :       Disturbing the Peace (Arguing with wife)
         Sentence: NFIR

Retention Warning Counseling :

- 19970307 :       NFIR [Extracted from discharge notification letter dated 21 August 1997]

Administrative Corrections to the Applicant’s DD 214

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

         “ MILPERSMAN 3630605 ”

The NDRB will recommend to the C ommander, 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 14, effective 3 October 1996 until 12 December 1997, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 91 (Contempt or disrespect toward warrant, non - commissioned, or petty officer) and Article 128 (Assault , other than simple ).

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

Applicant’s Issues
1. Post-s ervice conduct.

Decision

Date : 20 0 9 0604 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 contends his post-service efforts are worthy of being reviewed and considered to upgrade his current characterization of service . 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, three NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA ), Article 91 (Contempt or disrespect toward warrant, noncommissioned, or petty officer) and Article 134 (Drunken incapacitation for duty) . T he Applicant had a civilian conviction for Disturbing the Peace (arguing with his wife) on 5 July 1997 , and was disenrolled from an Aftercare program on 24 June 1997 for failure to comply with the standards of OPNAVINST 5350.4B ( Aftercare Program ) . But the Applicant’s administrative separation was by reason of misconduct due to commission of a serious offense as evidenced by the Naval Criminal Investigative Service (NCIS) investigation (CNN: 22 MAR97-GPCA-0008-7GNA) , showing the Applicant assaulted his spouse on 22 March 1997. Violation s of Article 91 and 128 (Assault , other than simple ) are considered serious offenses 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 command did not pursue a punitive discharge but opted instead for an administrative discharge.

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 rev iewed 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 o n the DD Form 293, he provide d two character references (former employer and b roth e r-in-law), a criminal record check , and a certificate of completion for 30 hours of instruction in preparation for the Master Electrician exam as evidence on his behalf. While the Boar d applauds the Applicant’s post- service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. To 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. The Board determined the charact erization of service received, Gener al (Under Honorable Conditions) , was an appropriate characterization considering the length of service , the UCMJ violations involved, and limited post- service documentation provided ; and 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

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 | ND0900816

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