Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000403

Original file (ND1000403.rtf) Auto-classification: Denied

ex-ADAN, USN

Current Discharge and Applicant’s Request

Application Received: 20091117

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)        20000921 - 20010529 ELS         Active:
Inactive: USNR (DEP) 20020104 - 20020121

Period of Service Under Review:
Date of Current Enlistment: 20020122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051007      Highest Rank/Rate: AD3
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.1 ( 6 )      Behavior: 2.8 ( 6 )        OTA: 2.94
Awards and Decorations ( per DD 214):

Periods of UA : ( 0600-0715 ) 20040106; ( 0600-0700 ) 20040128; ( 0600-0700 ) 20040131. Periods of CONF:

NJP :
- 20040123 :       Article 92 (Dereliction of duty)
         Awarded : Susp ended:

- 20050926 :      Article (NFIR) [Extracted from Evaluation Report & Counseling Record dtd 20051007]
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20040124 :       For violation of A rticle 92 – Dereliction of duty

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 :

Pertinent Regulation/Law
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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. Nondecisional issue s: Applicant seeks to re-enlist in the Armed Services and is seeking an upgrade in characterization of service from General (Under Honorable Conditions) to Honorable conditions. Additionally, Applicant seeks a change in his assigned re-enlistment code from RE-4 to RE-1.

2. Decisional issues : The Applicant did not identify any decisional issues for the NDRB’s consideration

Decision

Date : 20 1 1 0201 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 NDRB 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. T he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant enlisted into the N aval service for 4 years with no extensions at age 18 . The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention-counseling warning and two nonjudicial punishments (NJP) . The Applicant ’ s first NJP was for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) – D ereliction in the performance of duties. The details of the Applicant’s second NJP , dated 26 September 2005 , were not included in the Applicant’s official service record and were extracted from the Applicant ’ s Evaluation Report and Counseling Record as signed by the Commanding Officer dated 7 October 2005.

Based on the offenses committed by the Applicant, the command administratively processed h im for separation. The Applicant’s record of service is incomplete; the NDRB could find no record of the Applicant’s administrative discharge package . However, the Applicant’s Form DD- 214, B lock 26 (Separation Code) identified a separation program designator of HKA (involuntary separation, board waived). In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. As such, the Board presumed that the Applicant waived his right to an administrative discharge board as indicated by the assigned separation code and that the applicant was afforded the opportunity to consult with qualified counsel. The Applicant provided no additional documentation to rebut any presumption of regularity in governmental affairs by the NDRB or to substantiate or justify his issue.

: (Nondecisional). (1) Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to better his opportunity for re-enlistment. (2) The Applicant seeks a change in his assigned re-enlistment code to RE-1 in order to re-enlist in the Armed Forces . T he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing re-enlistment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. An unfavorable “RE” code or characterization of service is, in itself, not a bar to reenlistment. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.

Additionally, t he Applicant may petition the BCNR using Form DD-149 regarding his re-enlistment code. When requesting this change, the Applicant should provide as much documentation as possible regarding any contentions. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

: ( NDRB Board Issue ) ( ) . The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure h is discharge met the pertinent standards of equity and propriety. In regards to propriety, the Applicant’s two non-judicial punishments, coupled with the P age 13 retention counseling-warning, properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN) . The NDRB found no issue of impropriety; as such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate. Relief denied .

Characterization of service is founded on recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct . Additionally, the Applicant ’s service record reflects that he was formally counseled for violation of Article 86 of the UCMJ (Absence without leave) on 3 separate occasions. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of h is service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was both equitable and consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that the characterization of service at discharge was appropriate as issued ; an upgrade would be inappropriate. Accordingly, 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 T herefore, 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 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 | 2010_Navy | ND1000403

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