Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901040

Original file (ND0901040.rtf) Auto-classification: Denied

ex-HA, 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:         USNR (DEP)        19980609 - 19980921     Active:          19980922 - 20010710

Period of Service Under Review:
Date of Enlistment: 20010711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020425      Highest Rank/Rate: HN
Length of Service: Y ear( s ) M onth( s ) 15 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.86

Awards and Decorations (per DD 214):      Pistol

Periods of UA/C ONF :

NJP:
- 20020328 :       Article 91 (Insubordinate conduct toward a Senior Chief Petty Officer)
         Article 134 (Misprision of serious offense)
         Awarded: Suspended:

- 20020403 :      Article 86 (Unauthorized absence)
         Article 134 (Breaking restriction)
         Awarded: Suspended:

- 20020411 :      Article 112a (Drugs - marijuana)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20020328 :       For insubordinate conduct toward A Senior Chief Petty Officer and misprision of serious offense.

- 20020403 :       [Date extracted from Commanding Officer’s letter dated 20020418/]

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 Representation:    From Congress m ember :

Oth er Documentation:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 21 August 2002,
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

Applicant’s Issues

1. The Other Than Honorable (OTH) discharge was based on one specific event.
2. Seeks p ost-service conduct consideration .

Decision

Date: 200909 10 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.

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/or the reason for discharge if such change is warranted. 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 service record includes two retention warnings and three non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence (UA) – unknown duration), Article 91 (Insubordinate conduct toward a senior petty officer), Article 112a (Wrongful use of marijuana - THC level of 31 ng/ml) and Article 134 (Misprision of a serious offense, breaking restriction). Per the Commander’s (USS DENVER (LPD 9)) Administrative Separation Processing – Notification Procedure letter of 18 April 2003, the Applicant was notified that he was being considered for an administrative separation by reason of misconduct due to a p attern of m isconduct and d rug abuse as evidenced by his retention warning and three NJPs during this current enlistment. The Applicant acknowledged receipt of this notice and was subsequently discharged for a pattern of misconduct and assigned an Other Than Honorable Discharge. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an Administrative Board. H owever the DD Form 214 indicates he was assigned a separation code of “HKA” indicating he waived his right to an administrative board. The presumption of regularity of government affairs was applied in the absence of a com plete service record and administrative separation package.

: (Decisional) ( ) . In seeking an upgrade to Honorable the Applicant contends his discharge was based on one specific event which resulted from his inability to adjust to a new duty station and that the situation could have been avoided if he was provided proper resources. The Applicant provides no documented that he informed his chain of command that he was having problems adjusting and did not receive the assistance, leave, or support he requested . Additionally, the Applicant makes no mention of, nor provides documented proof that he attempted to use any one of the numerous family support programs for military service members . T he Board determined that there was sufficient evidence to support the discharge for misconduct due to a pattern of misconduct based on the previously noted misconduct. Fur thermore, t he Board has determined that an upgrade is not warranted based on a thorough review of the available evidence, to include the facts and circumstances unique to this case, Applicant’s Summary of Service, Record Entries, performance evaluation (overall trait average of 1.86) and the frequency and seriousness of the offenses committed by the Applicant.

Issue 2: (Decisional) (Equity) . The Applicant also requested an upgrade based on post-service conduct and contends that he has been an exemplary member of society with an impeccable work history and references. However, the Applicant did not provide any documented evidence of post-service conduct for the Board’s consideration despite being encouraged to do so in the DD 293 worksheet and other NDRB correspondence . 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 subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. . 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character. The Board appreciates the Applicant’s rehabilitative success to date. However, after a complete review of the entire record, the Board determined that the discharge was appropriate in light of the nature and frequency of the Applicant’s misconduct, and that the statement of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

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 PATTERN OF MISCONDUCT.

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 Disabled American 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 their 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

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NAVY | DRB | 2009_Navy | ND0901040

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