Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900957

Original file (ND0900957.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20090310

Characterization of Service Received:

Narrative Reason for Discharge: (COMMISSION OF A SERIOUS OFFENSE)

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20040908 - 20050801     Active:

Period of Service Under Review:
Date of Enlistment: 20050802     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070518      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):

Period of UA: 20061206 - 20061212 (6 DAYS); 20061213 - 20070125 (42 DAYS)
C ONF : 20070207-20070306 (28 DAYS)

NJP :
- 20061109 :       Art icle 92 ( Failure to obey an order or regulation - 2 specifications: wrongfully having a n interpersonal relationship with an E-4 and consuming alcohol under the age of 21 ).
                  Awarded : Susp ended :

S CM :
- 20070207 :       Art icle 86 (U nauthorized absence -2 specifications totaling 48 days )
         Sentence :

SPCM: C C :

Retention Warning Counseling :
- 20061109 :       For CO’s NJP held 20061109.

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 : Letter from Mother

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

Applicant’s Issues

1. The Applicant seeks employment and educational opportunities.
2. The Applicant believes her misconduct was due a sexual assault upon her.

Decision

Date : 20 10 04 15 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (COMMISSION OF A SERIOUS OFFENSE) .

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. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity a nd propriety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning , for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation - 2 specifications: underage drinking and wrongfully having a n interpersonal relationship with an E-4 ) ; and Summary Court-Martial ( ) for of the UCMJ: Article 86 (Unauthorized absence : 2 specifications totaling 48 days) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified for Administrative Separation Processing, the Applicant waived rights to consult with qualified counsel and to submit a written statement to the separating authority for consideration. The Applicant request ed an Administrative Separation Board (ASB), which she was allowed to plead her case . By a vote of 3 to 0, the ASB found that the preponderance of evidence does support that the Applicant did commit misconduct due to a pattern of misconduct and due to commission of a serious offense; a vote of 3 to 0 that recommended that she should be separated from the Navy ; and a vote of 3 to 0 that recommended that she be discharged Under Other Than Honorable conditions. Additionally, the Applicant went into an unauthorized absence status multiple times until her eventual discharge on 18 May 2007 , when she was discharged in absentia.

: (Nondecisional) The Applicant seeks employment and 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.

Issue 2: (Decisional) ( ) . The Applicant contends her misconduct was the consequences of being a victim of a sexual assault. For the Applicant's edification, the NDRB is not an investigative body, and allegations of assault should be made to an appropriate law enforcement organization or the Naval Inspector General's Office.
However, t he NDRB attempted to retrieve the Applicant’s medical records twice and also attempted to get a case report from the Naval Criminal Investigative Service (NCIS). Unfortunately, the NDRB was unable to retrieve her complete medical records and there was no record of an NCIS report filed. Due to propriety issues, the NDRB does not have access to the Sexual Assault Victim Intervention (SAVI) file. First, the NDRB can only verify what is in the Applicant’s service record, to include the testimony in the ASB. Regrettably, the NDRB cannot substantiate everything that happened o n the night of the alleged assault, which becomes a he said/she said scenario. Based on the facts available to the command, both Sailors’ were punished at Captain’s Mast. The Applicant did not utilize her right to Request Mast up her chain of command to have senior officers hear her complaints. After a period of time, the Applicant chose to go in an unauthorized absence status, to include one that lasted 42 days , which is considered a serious offense . At the ASB , the NDRB noted no SAVI representative was present to testify on the Applicant’s behalf or at least a SAVI incident report as an exhibit for the ASB to consider . Without some official or medical documentation to verify that the alleged sexual assault actually occurred, the NDRB cannot consider this as mitigating circumstance for the Applicant’s misconduct. We can only determine the facts based on the verifiable evidence that is present before the Board. The Applicant’s continued miscond uct became detrimental to maintain proper order and discipline within the command . Therefore, the NDRB determined that the command properly discharged the Applicant and that it was warranted. 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 MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE). The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment/Educational Opportunities and Post-Service Conduct .

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 (Unauthorized absence).

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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

Similar Decisions

NAVY | DRB | 2008_Navy | ND0801620

Original file (ND0801620.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. ” 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. 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.
USMC | DRB | 2009_Marine | MD0900788

Original file (MD0900788.rtf) Auto-classification: Denied

The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, and Discharge Process, the Board found Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present. ” Additional Reviews : Subsequent to a document review, former members are eligible...
NAVY | DRB | 2009_Navy | ND0900304

Original file (ND0900304.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant claims her misconduct was due to mitigating circumstances. ” 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 does not have the authority to change a narrative...
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 | 2010_Navy | ND1000923

Original file (ND1000923.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A.Naval Military Personnel...
NAVY | DRB | 2011_Navy | ND1101669

Original file (ND1101669.rtf) Auto-classification: Denied

Based on the offense committed by the Applicant, command administratively processed for separation. 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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date...
NAVY | DRB | 2009_Navy | ND0900697

Original file (ND0900697.rtf) Auto-classification: 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...
USMC | DRB | 2009_Marine | MD0902438

Original file (MD0902438.rtf) Auto-classification: Denied

Violation of Article 92 x 3 by disobeying the liberty order and riding in a government vehicle in an off duty status. ” 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 | ND1001652

Original file (ND1001652.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 . Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical...
NAVY | DRB | 2010_Navy | ND1000027

Original file (ND1000027.rtf) Auto-classification: Denied

Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.Therefore, relief is 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...

Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900957

Similar Decisions