Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000159

Original file (ND1000159.rtf) Auto-classification: Denied

ex-PC3, USN

Current Discharge and Applicant’s Request

Application Received: 20091008

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)        19970730 - 19980301     Active:          19980302 - 20010910

Period of Service Under Review:
Date of Current Enlistment: 20010911     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041005      Highest Rank/Rate: PC3
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.14

Awards and Decorations ( per DD 214):      , , E nlisted Surface Warfare Specialist designation

Periods of UA : 20031119-20040717 ( 242 days ) , 20040719-20040809 ( 22 days ) , 20040811-20040812 ( 2 days )
Periods of CONF:

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 980302 UNTIL 010910 ”
         “ TL: 98OCT05 TO 98OCT08; 03NOV19 TO 04JUL17; 04JUL19 TO 04AUG09; 04AUG11 TO 04AUG12 ”

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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

Applicant’s Issues

1.        Nondecisional issue : The Applicant seeks an upgrade in the characterization of his discharge to further his career opportunities and move on in life .
2.       Decisional issue : The Applicant contends that he warrants an upgrade in the characterization of his service due to his post-service conduct.

Decision

Date: 20 10 1202             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 provided no additional documentation for the NDRB’s consideration beyond his personal statement on his Form DD-293 and a copy of his Medical Office Expert training certificate.

The Applicant’s record of service included one prior 3 ½-year honorable enlistment period. His current enlistment period in question contains no NAVPERS 1070/613 (Pg 1 3) retention warning counselings and no nonjudicial or judicial punishments. However, he was charged with three violations o f the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without leave, 3 specifications: 242 days – returned by apprehension, 21 days – surrendered himself to his unit, and 1 day – surrendered himself to his unit ). Based on the nature of the misconduct and the need to maintain the good order and discipline of the service , the Applicant ’s command determined that the violations of the UCMJ were serious in nature and warranted punitive vice administrative action. On 2 0 Sept 2004, the Applicant’s command preferred formal charges against the A pplicant and referred the charges for trial by special court - martial. On 23 Sept 2004 , the Applicant requested administrative separation for the good of the service to escape trial by court-martial. He exercised his right to consult with counsel and stated that he understood the elements of the offenses charged against him. Furthermore, the Applicant admitted he was guilty of the offenses charged and that he understood that if his discharge was Under Other Than Honorable Conditions, it might deprive him of virtually all veterans benefits based upon his current enlistment and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant’s request for separation in lieu of trial by court-martial was approved on 01 Oct 2004 , and he was discharged effective 04 Oct 200 4 .

Issue 1: ( Non- Decisional) . The Applicant seeks an upgrade in the characterization of his discharge to further his career opportunities and move on in life . The NDRB does not upgrade discharges to former service members solely to aide them in b ecom ing more productive members of society. Rather, the NDRB examine s the propriety and the equity of an Applicant’s discharge and is authorized to change the character ization of that service or the reason for discharge if factors of equity or propriety warrant such change. The Applicant is directed to the Addendum , , Automatic Upgrades , and Post Service Conduct regarding .

Issue 2 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade in his characterization of service. The NDRB is authorized to consider 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. However, there is no law or regulation that provides an unfavorable discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct does not guarantee an upgrade from an unfavorable discharge, as each discharge is reviewed by the NDRB on a case-by-case basis. The Applicant provided a personal statement of his post - service conduct and a copy of training certification received in his efforts to re- establish himself in his community with a new career.
The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standards of both equity and propriety. B ased on the seriousness of the offense s committed, the Applicant’s length of service , and his in-service documentation, the NDRB determined that t he Applicant’s deliberate and willful misconduct constituted a significant departure from the conduct expected of members of the Naval service and that the awarded characterization of service and narrative reason for separation were warranted at the time of discharge .

A fter a careful review of the Applicant's post-service documentation - and taking into consideration his prior honorable service period of enlistment and the facts and circumstances unique to this case - the NDRB determined that t he Applicant’s statements of post - service conduct alone, without sufficient documentary evidence, were not enough to form a basis of relief . A s such, it does not warrant an upgrade of the characterization of service issued at the time of discharge . 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

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, Employment/Educational Opportunities, and Post-Service Conduct .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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 .

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 | 2010_Navy | ND1000159

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