Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902388

Original file (ND0902388.rtf) Auto-classification: Denied

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20090825

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650

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

Summary of Service

Prior Service:
Inactive:         NONE               Active:

Period of Service Under Review:
Date of Current Enlistment: 19940504     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19941020      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.6 (1)      Behavior: 2.0 (1)        OTA: 2.6

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 19940804 :      Article (Absence without leave – appointed place of duty 1130 – 1430, 19940726 )
         Article (False official statements – with intent to deceive )
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:
- 19970726 :      For failure to go to appointed place of duty 1130 – 1430, 19940726 , QM “A” School.

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 :

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

Applicant’s Issues

1. Wants to join the National Guard.
2. Post-service conduct warrants consideration .

Decision

Date: 20 10 0909 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

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 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 nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Articl e 86 ( Absence without leave from appointed place of duty, 3 hours) and Article 107 (False official statement with intent to deceive).
On 5 October 1994, the Applicant was charged with violations of the UCMJ: Article 86 (Absence without leave, 1 hour while at Recruit Training Command, Orlando, FL) and Article 92 (Failure to obey order or regulation, OPNAVINST 5370.2A (Navy Fraternization Policy) and NAVCRUITRACOMORLINST 5370.4A, by wrongfu lly having lunch at a restaurant with her company commander). On 11 October 1994, t he Applicant requested discharge for the good of the service to escape trial by court-martial. In the requ est , the Applicant noted that her counsel had fully explained the elements of the offenses for which s he was charged and that s h e was guilty of the offenses. Sh e further certified a complete understanding of the negative consequences of her actions and that characterization of service could be U nder O ther T han H onorable conditions. Her request was approved , and she was separated on 20 October 1994.

Issue 1: (Nondecisional) The Applicant wants to join the National Guard. 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 reentry code. Only the Board 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.

Issue 2 : (Decisional) ( ) . The Applicant contends her post-service conduct warrants an upgrade in characterization to General (Under Honorable Conditions) . The NDRB considers 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. T he Applicant provided documentation regarding her education, employment , and family. In reviewing this case, the NDRB noted the Applicant was diagnosed on 26 July 1994 with adjustment disorder with mixed emotional features, alcohol dependence, and personality disorder with dependent and immature features, and was recommended for administrative separation. On the same day (26 July), the Recruit Training Command (RTC) Legal Office was contacted regarding information concerning allegations of sexual harassment, dereliction of duty , and fraternization against the Applicant’s company commander. An investigation was conducted and the Incident/Complaint Report was submitted to the Commanding Officer, RTC, Orlando, FL, on 11 August 1994. Subsequently, the company commander and his deputy were taken to N onjudicial Punishment and found guilty of fraternization. On 12 September 1994 and 5 October 1994, the Mental Health Department, Naval Hospital, Orlando, FL, submitted letters again recommending administrative separation of the Applicant. However, s eparation for personality disorder is not appropriate nor should be pursued when separation is warranted on the basis of unsatisfactory performance or misconduct. Based on her misconduct and request for separation in lieu of trial by court-martial, the NDRB determined the discharge was warranted. However, after a careful review of the Applica nt's official service record and taking into consideration her mental conditio n during recruit training, the loss of special trust and confidence in her immediate superiors, and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. Although the Applicant requested separation in lieu of trial by court-martial, she had less than six months of active service , and the NDRB determined an Uncharacterized characterization of service would be more appropriate than General (Under Honorable Conditions) , primarily because an Uncharacterized discharge is warranted for personnel separated within 180 days of enlistment . W ith respect to non - service - related administrative matters ( i.e., Department of Veterans Affairs benefits, civilian employment ), an Uncharacterized separation shall be considered the equivalent of an Honorable or General (Under Honorable Conditions) characterization. B y majority rule, the NDRB v oted to change the narrative reason for separation to Secretarial Authority, due in large part to the inappropriate actions and lack of leadership of her immediate superiors.

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 change to SECRETARIAL AUTHORITY .

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 .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 .

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 .

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 | ND0902388

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