Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000361

Original file (ND1000361.rtf) Auto-classification: Denied

ex-CTTC, USN

Current Discharge and Applicant’s Request

Application Received: 20091113

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19940930 - 19941027     Active: 19941028 - 19981026
                                    19981027 - 20030428

Period of Service Under Review:
Date of Current Enlistment: 20030429     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090528      Highest Rank/Rate: CTTC
Length of Service : Y ear s M onth 0 D a ys
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.9 ( 7 )      Behavior: 3.1 ( 7 )        OTA: 3.66

Awards and Decorations ( per DD 214):      Pistol (3) (4) (2) (2) LOC(2) LOA(4) ESWS Meritorious Mast

Periods of UA /C ONF :

NJP :

- 20080314:      Article , 2 specifications
         Specification 1: Adultery
         Specification 2: Obstructing Justice
         Article , Failure to obey a lawful order
         Awarded: , Suspended:

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 941028 UNTIL 030428 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, 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 92 ( F ailure to obey order or regulation) , Article 134 (Adultery) , and Article 134 (Obstructing justice) .

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

Applicant’s Issues

1 .       Discharge based on one isolated incident in 14 years of service .
2.       Change narrative reason to Expiration of Active Obligated Service (EAOS) .

Decision

Date: 20 10 1220             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. The Applicant’s record of service for the period under review included one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( F ailure to obey order or regulation) and Article 134 ( Specification 1: A dultery , Specification 2: O bstruction of j ustice) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was based on one isolated incident in 14 years of service and that his entire record of service warrants consideration for an upgrade to Honorable . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N avy to maintain proper order and discipline. Violation of Articles 92 and 134 are such offenses . T he Applicant violated Article 92 by failing to obey OPNAVINST 5370.2C , which sets forth Navy policy on relationships between senior and subordinate personnel, as well as their relationship with personnel in other military services. He also violat ed Article 134 (two specifications) by having sexual intercourse with a woman other than his wife and attempting to persuade the other woman not to disclose information regarding their involvement. Failure to obey an order or regulation , adultery , and obstruction of justice can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violati ng Articles 92 and 134 of the UCMJ, which marred his service record. However, his command chose not to pursue a punitive discharge or confinement but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant's discharge equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied .

: (Decisional) ( ) . The Applicant requests that the narrative reason for discharge be changed to E xpiration of A ctive O bligated S ervice (EAOS). The Applicant’s original EAOS for the period under review was 28 April 2009. On or about 13 Apr il 2009, while being processed for administrative s eparation, he voluntarily agree d to extend his enlistment for one month . This gave him a new contract expiration date of 28 May 2009. On 26 May 2009, the Applicant’s command was granted authority to discharge him within 10 days of receiving the discharge letter with a characterization of General (Under Honorable Conditions) for commission of a serious offen s e. Subsequently, h is comm and discharged him on 28 May 2009 , which was the last day of his enlistment , but prior to the end of the day (2359). Involuntary administrative separation for commission of a serious offense rather than for expiration of active obligated service demonstrated the Applicant did not meet the required standards of performance or discipline and represent ed a failure to fulfill that commitment. The NDRB determined the Applicant did not successfully complete the period of obligated service under review , even though he was separated on the last day of his obligated service . T he narrative reason for separation given at the time of issuance was appropriate. 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

Similar Decisions

USMC | DRB | 2015_Marine | MD1500010

Original file (MD1500010.rtf) Auto-classification: Denied

The Board determined that the documentation submitted by the Applicant does not warrant relief. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted,...
NAVY | DRB | 2010_Navy | ND1000536

Original file (ND1000536.rtf) Auto-classification: Denied

Full relief granted.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 change to . ” 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...
NAVY | DRB | 2009_Navy | ND0902047

Original file (ND0902047.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Wants to enlist in the U.S. Army Reserve. ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal...
NAVY | DRB | 2006_Navy | ND0601030

Original file (ND0601030.rtf) Auto-classification: Denied

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation NONE. The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR),...
NAVY | DRB | 2013_Navy | ND1300573

Original file (ND1300573.rtf) Auto-classification: Denied

Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Relief denied.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...
NAVY | DRB | 2014_Navy | ND1401297

Original file (ND1401297.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants an upgrade of his discharge to General, and reentry (RE) code to RE-2, for better employment opportunities. Representation: 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...
USMC | DRB | 2012_Marine | MD1200416

Original file (MD1200416.rtf) Auto-classification: Denied

The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. ” 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. Additionally, the NDRB has no...
USMC | DRB | 2008_Marine | MD0801554

Original file (MD0801554.rtf) Auto-classification: Denied

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 92 (Failure to obey orders or regulations), and Article 134 (Adultery). With a vote of 5-0,the Board found the discharge was proper but not equitable in that the violations were limited enough to rate a “General (Under Honorable Conditions)” rather than the awarded “Under Other Than Honorable...
NAVY | DRB | 2011_Navy | ND1100345

Original file (ND1100345.rtf) Auto-classification: Denied

Based on the offenses committed by the Applicant, his command administratively processed him for separation. The decision to administratively separate a servicemember is made independently of the imposition of NJP per regulation and is a separate and distinct process from NJP. ” 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...
NAVY | DRB | 2013_Navy | ND1300728

Original file (ND1300728.rtf) Auto-classification: Denied

Representation: 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...

Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000361

Similar Decisions