Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901659

Original file (ND0901659.rtf) Auto-classification: Denied

ex-CTR3, USN

Current Discharge and Applicant’s Request

Application Received: 20090527

Characterization of Service Received:

Narrative Reason for Discharge: MISCONDUCT (MINOR INFRACTIONS)

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20051108 - 20051121     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081001      Highest Rank/Rate: CTR 2
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 70
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.16

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

Periods of UA /C ONF :

NJP :

- 20080904 :       Article (Drunk and disorderly)
         Article (Failure to obey order or regulation, dereliction of duty)
         Article 134 (General article, conduct of a nature to bring discredit upon the Armed Force s )
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20080702 Per Commanding Officer’s (USS SHOUP (DDG 86)) letter of 20080908

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT ( MINOR INFRACTIONS ) ”


The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-138, SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS.

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.        Wants reentry code (RE code) changed .
2.       Isolated incident.
3.       Correct separation code and narrative reason.

Decision

Date: 20 10 0304             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (MINOR INFRACTIONS) .

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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 NAVPERS 1070/613 (Page 13) warning and one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, dereliction of duty) and Article 134 ( Drunk and disorderly and general article, conduct of a nature to bring discredit upon the Ar med Forces. Based on the offenses committed by the Applicant, command administratively processed for separation . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review .

: (Nondecisional) The Applicant provided a personal statement wherein she is requesting that her RE code be changed.
The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and 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.

Issues 2-3 : (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable and contends that this was the only incident “ in the Navy or national guard” while serving her country and considering the conditions in which she was working. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record as previously discussed reflects that she was punished at NJP for 3 different offenses . Furthermore, the Commanding Officer’s (USS SHOUP (DDG 86)) letter of 01 July 2008 indicated the following: 1) the Applicant’s performance while temporarily assigned to the administrative division was below average, 2) she had is sues regarding her financial situation and outstanding loans that needed to be worked out , 3) most of the problems that she had were believed to be caused by her immaturity and disingenuousness , 4 ) s he was singled out and harassed by members of her division , 5 ) the complaint she filed was answered appropriately, and 6 ) the command went far beyond what was required to assure that her concerns were addressed . Taking into consideration the evidence of record and documentation provided by the Applicant the NDRB determined that there was sufficient evidence to support an administrative discharge based on minor disciplinary infractions and that the characterization of discharge was appropriate based on the offenses committed, age and length of service of the Applicant. Additionally, the NDRB concurs with the Applicant that the DD214 erroneously indicated that the Applicant was separated due to the commission of a serious offense and has recommended that it be corrected as previously noted. However, the NDRB does not agree with the Applicant’s assertion that her separation code is incorrect since she was administratively separated for misconduct (minor disciplinary infractions).

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall re ad - MINOR INFRACTIONS . 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 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.

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 | ND0901659

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