Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901753

Original file (ND0901753.rtf) Auto-classification: Denied

ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received: 20090609

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)        20040921 - 20050714     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050715     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081119      Highest Rank/Rate: FC3
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 73
Evaluation M arks:         Performance: 2.7 ( 4 )      Behavior: 2.8 ( 5 )        OTA: 3.02

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20071228 :       Article (Absence without leave)
         Awarded : Susp ended:

- 20080816 :       Article (Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer )
         Article 92 (Failure to obey order or regulation , misusing Navy Information Technology resources to distribute pornography)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20071228 :       (NFIR) Extracted from Commanding Officer Letter dated 20081028.

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 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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. Denied a right to counsel and threatened.
Decision

Date: 20 10 03 31 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 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 two for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence of unknown duration) , Article 91 ( Insubordinate conduct toward a master chief petty officer by sending him an email with picture attached of an elderly man with his middle finger raised ), and Article 92 ( Failure to obey an order or regulation by misusing Navy Information Technology resources to distribute pornography ) . Based on the offense s committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review .

: (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable and contends that he was not given legal counsel prior to his captain’s mast , during the proceedings the commanding officer threatened to throw him overboard and not call man overboard and he was denied assistance in writing his appeal . The Applicant also contends that he did not report the incident due to fear of losing his General (Under Honorable Conditions) discharge. The Applicant did not submit any documentary evidence for the Board’s consideration. Furthermore, there is no evidence contained in the record nor provided by the Applicant to support his contentions regarding wrongdoing and/or threats by anyone in his chain of command. Even if the assertions could be proven, they would not serve as a justification for the Applicant’s own misconduct as previously discussed. Furthermore, pursuant to the Manual of Courts-Martial, Part V, 2008 Edition, service members attached to a vessel do not have the right to refuse NJP. A member is only entitled to consult with counsel if he has the right to refuse NJP. The Applicant has not provided documentary evidence to prove that he is entitled to consult with counsel or obtain assistance with writing an appeal to his NJP while attached to a vessel. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characteriz e that service under Honorable conditions. A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. Based on a review of the evidence of record, statement of the Applicant contained in his DD Form 293, and taking into consideration the Applicant’s length of service, performance evaluations and the seriousness of the offenses committed , the NDRB determined that an upgrade to Honorable is not warranted.

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 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 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 | ND0901753

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