Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902249

Original file (ND0902249.rtf) Auto-classification: Denied

ex-TM3, USN

Current Discharge and Applicant’s Request

Application Received: 20090812

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)        20010612 - 20010715     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010716     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050601      Highest Rank/Rate: TM2
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 4.0 ( 7 )      Behavior: 2.4 ( 7 )        OTA: 3.32

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20020916 :       Article (Drunken or reckless operation of v ehicle on 20020906)
         Awarded : Susp ended:

- 20050316 :       Article 89 ( Disrespectful toward Commissioned Officer)
         Article 134 (Indecent assault - 2 specifications )
         Article 134 (Disorderly conduct - drunkenness)
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling :
- 20020919 :       For violation of the UCMJ, Article 111 (Drunken Operation of Vehicle)

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT (SERIOUS OFFENSE) ”

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 Representation:          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 11 June 2008, 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 .

C. 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 89 (Disrespectful toward Commissioned Officer), Article (Drunken or reckless operation of vehicle), and Article 134 (Indecent assault).

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

Applicant’s Issues
1. The Applicant seeks an upgrade to reenlist into the Armed Forces.
2 . The Applicant seeks an upgrade to enhance employment opportunities .
3 . The Applicant contends he made a mistake and would like to redeem himself.

Decision
Date: 2010 0812 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 Board did complete a thorough review of the circumstances that l ed to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespectful toward Commissioned Officer), Article (Drunken or reckless operation of vehicle), Article 134 (Indecent assault - 2 specifications) , and Article 134 (Disorderly conduct - drunkenness). 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 exercised or waived rights to consult with a qua lified counsel and to submit a written statement for consideration by the separating authority, but determined that he did waive an administrative board based on his separation code of HKQ.

: (Nondecisional) The Applicant seeks an upgrade to change his RE-code so he can reenlist into the Armed Forces and an upgrade to enhance employment opportunities. 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 B oard for Correction of Naval Records 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. Also, 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. Furthermore, per Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE , the separation code HKQ stands for “Misconduct - Serious Offense (Administrative Board waived) . ”

: (Decisional) ( ) . The Applicant contends his discharge should be upgraded based on his record of service , which was good apart from a single period of misconduct. The Applicant states he made a mistake and would like to redeem himself. Despite a Sailor’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. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. V iolation of UCMJ Articles 89, 111, and 134 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The Board determined an upgrade would be inappropriate.

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, Reenlistment/RE-code , Employment/Educational Opportunities 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 | ND0902249

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