Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901011

Original file (ND0901011.rtf) Auto-classification: Denied

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20090317

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)        20051005 - 20051010     Active:

Period of Service Under Review:
Date of Enlistment: 20051011     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060428      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 20051222 :       Art icle 92 ( Failed to obey a lawful order by wrongfully using racially explicit language)
         Awarded : Susp ended :

- 20060417 :       Article 1 34 ( On divers occasions on 2006 04, willfully and wrongfully exposed in an indecent manner to public view his buttocks and testicles )
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20051222 :       For CO’s Mast of 20051222; VUCMJ, Art 92, Failure to obey other lawful written order (Racial slur)

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 11, effective 26 April 2005 until Present, 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 .

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

1.       Hopes to reenlist.
2.       Was y oung and made a mistake.
3. The charge of a pattern of misconduct is unfounded.

Decision

Date: 2009 0903             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 NAV PERS 1070/613 (Page 13) warning and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order by wrongfully using racially explicit language) and Article 134 (Willfully and wrongfully expos ing in an indecent manner to public view his buttocks and testicles on various occasions). Based on the offenses committed by the Applicant, command administratively processed for separation due to a pattern of misconduct . When notified o f a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, obtain copies of documents to be forwarded to the separation authority, and to request a g eneral c ourt s - m artial c onvening a uthority review.

: (Nondecisional) The Applicant is requesting an upgrade for reenlistment purposes. 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.

Issue 2-3 : (Decisional) ( ) . The Applicant contends he was young and made a major mistake and that his discharge was improper because he was not given adequate time to select a career. The evidence of record reflect s that the Applicant was disenrolled from Engineering Mechanical Core due to a lack of comprehension and retention. Additionally, the Commanding Officer’s (USS BATAAN (LDH 5)) letter of 06 April 2001, contained the following comments: 1) all reasonable attempts to rehabilitate the Applicant have been unsuccessful, 2) despite being awarded NJP for drunk and disorderly conduct and being issued a page 13 counseling warning , he went on unauthorized absences on tw o subsequent occasions , 3) his performance was below average and he lack ed the motivation or initiative to increase his knowledge or enhance his self - worth, 4) his substandard behavior was detrimental to good order and discipline, and 5) he was separated due to a pattern of misconduct. Furthermore , the Recruit Training Command Great Lakes Incident Report signed 14 April 2006, indicates the Applicant and other shipmates “ inappropriately exposed themselves toward other shipmates as a prank. ”

In response to the Applicant’s contention that he was young and made a major mistake, t he evidence of record does not demonstrate and the Applicant has not provided any evidence to prove that he was not responsible for his conduct or that he should not be held accountable for his actions. Moreover, t here is no evidence in the record or provided by the Applicant to support his contention that he was not give adequate time to select a career. However, even if such evidence did exis t, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The NDRB determined there was sufficient evidenced to support the basis for discharge due to a pattern of misconduct as evidenced by the Applicant’s two NJPs and page 13 counseling warning during this current enlistment. The Board also determined that an upgrade to Honorable was not warranted based on a review of the Applicant’s statement on his DD Form 293, the record of evidence, and the seriousness of the Applicant’s misconduct as outlined in the incident complaint report.
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 of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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.

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 | ND0901011

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