Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901405

Original file (ND0901405.rtf) Auto-classification: Denied

ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20090427

Characterization of Service Received:

Narrative Reason for Discharge: (CIVIL CONVICTION)

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030115 - 20030804     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030805     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080226      Highest Rank/Rate: HM3
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.09

Awards and Decorations ( per DD 214):      Rifle Pistol FMFR

Periods of UA /C ONF :     NJP :     S CM :    SPCM:

C C :

- 20080110 :       Offense: Violation of California Vehicle Code §§ 23152(B) and 23578, DUI, refusal to take chemical test.
         Sentence : Summary probation, $1834.00 fine, $100.00 probation revocation restitution fine, 10 days Public Service Program to be completed by 9 May 2008 , not drive with a measurable amount of alcohol/drugs in blood, submit to any test at the request of a peace officer for detection of alcohol/drugs in blood, violate no laws regarding driving a motor vehicle while under the influence or in the possession of alcohol, drugs or both, not to drive without a valid license and liability insurance, attend MADD as directed by Assessor.

Retention Warning Counseling :

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 /To Representat ion :          From /To Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 92 .

C . 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.        Want s to use his Montgomery GI Bill to attend school.
2.       Had almost completed his enlistment.

Decision

Date: 20 100114             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT ( CIVILIAN CONVICTION ) .

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 one civilian conviction for driving under the influence of alcohol and refusal to take a chemical test. Based on the Applicant's civilian conviction and his failure to comply with his aftercare program, the command administratively processed him for separation due to civilian conviction and alcohol rehabilitation failure. When notified for administrative separation processing, the Applicant waived his rights to consult with qualified counsel and to a general courts-martial review. However he elected his rights to submit a written statement and obtain copies of documents forwarded to the separation authority.
Issue 1: (Nondecisional) The Applicant is seeking an upgrade to Honorable to qualify for the Montgomery GI Bill in order to attend school. 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 1: (Decisional) (Equity) RELIEF NOT WARRANTED. In seeking an upgrade to Honorable, the Applicant contends he was 5 months away from the expiration active obligated service when he was administratively discharged. Pursuant to Military Personnel Manual 1910-144, members may be separated prior to the expiration of their enlistment if 1) during the current enlistment they were awarded a civilian conviction, or subjected to actions tantamount to findings of guilt, if the offense would warrant a punitive discharge per the Manual of Courts-Martial, appendix 12 , for same or closely related offense; 2) the specific circumstances of offense warrant separation; or 3) a civil sentence includes confinement for six or more months without regard to suspension, probation, or early release. As noted supra, the Applicant was processed for separation based on his civilian conviction and failure to complete the alcohol rehabilitation program and subsequently discharged due to a civilian conviction. Based on a review of the Applicant's record of service, the Board has made the following determinations: 1) there was sufficient evidence to separate the Applicant due to civilian conviction, 2) the commanding officer acted within his authority in discharging the Applicant prior to the expiration of his enlistment , and 3) an upgrade was not warranted based on the seriousness of the offense committed by the Applicant and his failure to comply with the aftercare program for alcohol rehabilitation.
Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (CIVIL CONVICTION).
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 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

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NAVY | DRB | 2009_Navy | ND0901405

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