Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902369

Original file (ND0902369.rtf) Auto-classification: Denied

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20090820

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: SECNAVINST 1920.6B

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

Summary of Service
Prior Service:
Inactive:         US N (ROTC )        NONE      Active:

Period of Service Under Review:
Date of Appointment : 19980 411    Age at Enlistment:
Years Contracted: Indefinite
Date of Discharge: 20050630      Highest Rank : LT
Length of Service:
         Inactive:        Year(s) Month(s) 09 D ay(s)
         Active   Year(s) Month(s) 19 D ay(s)
Education Level:        AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):

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

Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20090402
NDRB Documentary Review Docket Number:   ND08-01044
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “ SECNAVINST 1920.6B ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION ”

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 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1.       The Applicant desires the NDRB to consider whether an Under Other Than Honorable Conditions discharge was an equitable result given the Applicant’s medical condition at the time of the incident.

Decision

Date: 2010 1004             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 Applicant’s record of service included no misconduct resulting in court-martial or nonjudicial punishment. The Applicant requested separation in lieu of trial by court-martial (SILT) on 2 Feb ruary 2005 after being charged with Article 121 (Larceny, and wrongful appropriation, 1 specification) and Article 133 (Conduct unbecoming an officer and a gentleman, 1 specification). The Applicant’s request was approved in May, and he was separated in June of 2005 with an Under Other Than Honorable Conditions characterization of service.

Per regulations, in order to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offenses for which they were charged and that they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment, and that they might expect to encounter substantial prejudice in civilian life in situations where the character of discharge may have a bearing. The Applicant signed SILT documents on 2 Feb ruary 2005 , which were prepared in accordance with regulations and found to be sufficient in law and fact by competent legal authority.

: (Decisional) ( ) PARTIAL . The Applicant desires the NDRB to consider whether an Under Other Than Honorable Conditions discharge was an equitable result given the Applicant’s medical condition at the time of the incident. The Applicant submitted significant medical documentation concerning his medi cal condition at the time of the misconduct of record . The Applicant had been involved in a motor vehic le accident, receiving a head injury that he claims caused him to be unable to think clearly at the time of his misconduct. The NDRB carefully considered this documentation along with testimony from the Applicant and an expert witness. The NDRB found the evidence in support of the Applicant’s medical condition to be largely in conclusive as a cause of his misconduct. In the course of reviewing documentary evidence and carefully considering testimony from the Applicant , and his expert medical witness , the NDRB found the Applicant was experiencing numerous, extremely harsh stressors at the time of the misconduct. These included an ongoing, contentious divorce and concern over the custody, proper care , and separation from his daughter, all while undergoing the rigors of medical school. The NDRB found these stressors, along with the possibility of his head injury as a contributing factor , to mitigate, but not fully excuse , the Applicant’s misconduct . Partial relief is warranted on equitable grounds.

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 .

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 | ND0902369

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