Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902524

Original file (ND0902524.rtf) Auto-classification: Denied

ex-AKAN, USNR

Current Discharge and Applicant’s Request

Application Received: 20090915

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:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19990 211     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020426      Highest Rank/Rate: AKAN
Length of Service :
Inactive: 00 Y ear( s ) 00 M onth( s ) 25 D a y ( s )
Active: Y ear ( s ) 04 M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 3.17 (1)

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :
- 19990624 :       Article 86 (Absence from appointed place of duty)
         Article 92 (Failure to obey a order or regulation)
         Awarded : Susp ended: NONE

- 19991209 :       Article 90 (Assaulting or willfully disobeying superior commissioned officer)
         Article 95 (Resistance, fight, breach of arrest)
         Article 108 (Military property of the U.S. - Sale, loss, damage, destruction, or wrongful disposition)
         Article 109 (Property other than military property of the U. S. - waste, spoilage, or destruction)
         Article 134 (Disorderly c onduct, drunkenness)
         Awarded : Susp ended: NONE

- 20010619 :       Article 111 (Drunken or reckless operation of vehicle)
         Article 134 (Drunkenness-incapacitation for performance of duties through prior wrongful indulgence intoxicating liquor or any drug)
         Awarded : CC 30 days Susp ended: NONE

- 20020322 :       Article 92 (Failure to obey order or regulation)
         Awarded : Susp ended: NONE

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19990604 :       For unauthorized absence from unit and fail ure to obey an order or regulation

Administrative Corrections to the Applicant’s DD 214

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

         “ 99MAR08 ”
         “ 03 04 26 ”

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 22, effective 15 December 1998 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT .

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.        Applicant desires upgrade to reenlist in the armed forces.
2.       Applicant desires upgrade to obtain better employment opportunities.
3.       Applicant contends his post-service conduct reflects his true character and warrants an upgrade.

Decision

Date: 20 10 1014             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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board complete d a thorough review of the circumstances that led 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 for unauthorized absence and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, NFIR ) ; Article 90 ( Assaulting or willfully disobeying superior commissioned officer, specifics NFIR); Article 92 ( Failure to obey order, regulation , 2 specific ations , to include 23 Feb 2002 incident driving on Andrews AFB while driving privileges were revoked ) ; Article 95 (Resistance, flight, breach of arrest, and escape, specifics NFIR); A rticle 108 ( Military property loss, damage, destruction, disposition , specifics NFIR ); Article 109 (Property other than military property of U.S. loss, damage, destruction, disposition, specifics NFIR); Article 111 (Drunken operation of vehicle, 22 Apr 2001 DUI onboard Andrews AFB, BAC 0.13); and Article 134 ( 2 specifications: disorderly conduct/drunkenness, d runken n ess-incapacitation for performance of duties through prior indulgenc e in intoxicating liquor, under influence of alcohol during workday on 22 Apr 2001 ) .

When the Applicant received the DUI charge aboard Andrews AFB ( 22 Apr 2001 ) , his command processed him for administrative separation , which is mandatory per U.S. Navy regulations. Though processing is mandatory, the Applicant’s commanding officer requested a retention waive r, dated 16 Jan 2002, from the C ommander, Nav y Personnel Command (NAVPERSCOM) due to the Applicant’s strong performance and well-regarded standing within the command. On 26 Feb 2002, NAVPERSCOM approved the retention of the Applicant but directed the command to proceed with administrative separation if the Applicant failed to complete further treatment , incurred another alcohol - related incident , or had any other misconduct . Two months later, the Applicant was apprehended aboard Andrews AFB for driving his vehicle on base when he knowingly had been previously debarred from driving on base for a period of one year after his DUI incident on 22 Apr 2001. T he command then initiated separation processing of the Applicant, due to pattern of misconduct, and notified him on 15 Apr 2002. The Applicant subsequently waived rights to consult with a qualified counsel ; submit a written statement ; and request an administrative board or a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant desires an upgrade to reenlist in the armed forces. 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.

: (Nondecisional) The Applicant desires an upgrade to obtain better employment 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 , and therefore relief cannot be granted on this basis .

: (Decisional) ( ) . The Applicant contends his post-service conduct reflects his true character and warrants an upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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 . The Applicant provided documentation that included: a personal letter to the NDRB; a copy of his driver’s license (MD) and social security card; a copy of his U.S. naturalization certificate; a copy of his marriage certificate; and three letters of reference . The Applicant’s efforts need to be more encompassing. He could have included evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; or college/vocational school transcripts. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis . Relief denied.

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 | ND0902524

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