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NAVY | DRB | 2009_Navy | ND0900829
Original file (ND0900829.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20090225
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)        20030828 - 200408 04     Active:  
         USNR (DEP)        20050803 - 20050821

Period of Service Under Review:
Date of Enlistment: 20050822     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070613      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.00
Awards and Decorations ( per DD 214):     

Periods of UA : 1130, 20060207 - 1430, 20060222 ( 15 days, 3 hours); 0700, 20060327 - 2100, 20060418 ( 22 days, 14 hours); 0900, 20070220 - 0843, 2007022 ( 1 day, 23 hours , 43 minutes ); 1200, 20070309 - 0700, 20070313 ( 3 days, 19 hours); 0700, 20070315 - 0700, 20070316 ( 1 day); 0700, 20070318 - 1000, 20070319 ( 1 day, 3 hours); 0700, 20070 4 1 9 - 0330, 20070514 ( 24 days, 20 h ours , 30 minutes ); 0800, 20070601 - 0700, 20070604 ( 2 days, 23 hours)

NJP :
- 20060428 :       Art icle 86 (UA − to tal of 39 days, 1 hour) , 3 specifications
         Awarded : Susp ended :

S CM :

- 20061207 :       Art icle 86 (UA, 0700, 20060814-0800, 200601206, 114 days , 1 hour)
         Sentence : (20061207-20061 231 (25 days))
         CA action 20061216 Approved all findings of guilty and ordered executed.

SPCM:             C C :

Retention Warning Counseling :
- 20060428 :       For unauthorized absence, 2 specifications

Administrative Corrections to the Applicant’s DD 214

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

          “ 20060207-2006022 1 ; 20060327 - 2006041 7 ; 20060814-20060120 5, 20061207-20061 231, 20070220-200702 21 , 20070309-2007031 2, 20070315; 20070318; 2 0070419 - 2007051 , 20070601-2007060 3 ”

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 :
         - Local Registrar’s Certificate of Death, Commonwealth of Pennsylvania
         - Department of Veteran’s Affairs letter 325/NCC/knp XSS 605 18 4702 [Applicant’s son] of 5 January 2009

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 86 (UA over 30 days) .




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

Applicant’s Issues

 1. Applicant is seeking an upgrade for the purpose of bur y i ng her son, a former service member , in a national cemetery.

Decision

Date: 20 0 9 0528             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 in the characterization of her son’s discharge to H onorable to bury him in the national cemetery. The Applicant submitted a statement indicating after the death of her only son, the Veteran’s Affairs Regional Office informed her that he was honorably discharged and three weeks later was informed by another source that her son was not eligible to be buried in the cemetery based on his other than honorable d ischarge. The Board extends it s condolences to the Applicant in the ill-fated death of her son. Unfortunat ely, in regard to veteran’s benefits , this is 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 , for additional information regarding .

( ) . For edification of the Applicant, i n 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 the former service member’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. The former service member’ s record of service was marred by one NAVPERS 1070/613 (Page 13) warning, one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA for 39 days) , and one SCM for violation of the UCMJ : Article 86 ( U A o f 114 days). Violation of Article 86 (UA more than 30 days) is considered a serious offense 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 refer the Applicant to a SCM but opted instead for an administrative discharge.
Based on the seriousness of offenses c ommitted by the former service member , length of the UAs , overall performance record , and lack of mitigating circumstances, the Board determined an upgrade is not warranted. Therefore, relief is denied.

After a thorough review of the available evidence, to include the Former ser 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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