Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900985

Original file (ND0900985.rtf) Auto-classification: Denied

ex-YNSA, USN

Current Discharge and Applicant’s Request

Application Received: 20090311

Characterization of Service Received:

Narrative Reason for Discharge: REDUCTION IN FORCE

Authority for Discharge: MILPERSMAN 1910-102

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20021127 - 20030318     Active:

Period of Service Under Review:
Date of Enlistment: 20030319     Age at Enlistment:
Period of E nlistment : Years 27 MONTHS Extension
Date of Discharge: 20070706      Highest Rank/Rate: YN3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 2.66

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

Periods of UA /C ONF :

NJP :
- 20070 7 03 :      Art icle 92 ( Failure to obey a lawful order by missing 3 restricted musters on or about 0600, 20070624; 0600, 20070701; and 20070702)
         Awarded : Susp ended :

- 20070621 :       Article 86 ( UA from 20070426 until 20070514 )
         Article 87 (Missing ship’s movement on or about 20070430 )
         Awarded : Susp ended:

S CM :    SPCM:

C C :

Retention Warning Counseling :

- 20040316 :       For having been diagnosed by medical authorities as having a personality disorder, not otherwise specified, with borderline and depressive features.

- 20070702 :       For violation of the UCMJ, Article 86, UA on or about 20070426 until 20070514 and Article 87, Missing ship’s movement on or about 20070430, that led to your non-judicial punishment of 20070621.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, Article1910-102, effective 31 May 2005, until Present, SEPARATION BY REASON OF SELECTED CHANGES IN SERVICE OBLIGATION (ACTIVE DUTY AND INACTIVE NAVAL RESERVIST ).

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 .

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

Applicant’s Issues

1.       Seeking a change to his reenlistment (RE) c ode.
2.       Discharge should be characterized as honorable and was not due to captain’s mast.
3.       Requesting p ost - service conduct consideration .

Decision

Date: 20090827            Location: Washington D.C.        R epresentation :

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

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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence (UA) – 18 days), Article 87 (Missing ship’s movement), and Article 92 (Failure to obey a lawful order – missed 3 restricted musters). The Applicant was subsequently administratively processed for separation due to a reduction in force . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with qualified counsel, submit a written statement, and submit statements to the separation authori ty . The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package .

: (Nondecisional) The Applicant has requested that his RE Code be changed from RE-4 to RE -1 . However , 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 B oard for Correction of Naval Records (B CNR ) 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.

Issue 2: (Decisional) ( ) . The Applicant is seeking an upgrade to honorable and contends he only went to NJP once and that his discharge was honorable. Additionally, he contends his “career was full of awards” and that he was a great sailor whose UA was due to a “reckless driving ticket.” The evidence of record as discussed supra reflects that the Applicant had 2 NJPs and 2 retention warnings thereby contradict ing his contention that he only had one NJP . In regard to the Applicant’s awards, his DD Form 214 reflects that he has 5 medals and 2 ribbons for service-related matters ; there was n o evidence of personal awards or citations awarded for outstanding individual performance. To the contrary , the Applicant’s final evaluation report submitted upon his reduction in rate and separation from the Navy indicates he had an overall trait average of 2.33 and that he was not recommended for advancement or retention. The NDRB determined that based on the Applicant’s overall record, the seriousness of the offenses committed and lack of mitigating circumstances , an upgrade to Honorable is not warranted.

Issue 3: (Decisional) ( ) . The Applicant also contends “my heart is on the ocean and I am now a merchant marine .. . ” However , he presents no documentary evidence of employment for the Board’s consideration. 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 submission 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.

Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate s or relate s directly to your issues in Item 6." (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . The Applicant’s statement concerning post-service conduct, without documented evidence, was found not to mitigate the misconduct, which precipitated the discharge .

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 REDUCTION IN FORCE.

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, and Automatic Upgrades .

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.

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.

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 | ND0900985

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