Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000536

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

ex-DC3, USN

Current Discharge and Applicant’s Request

Application Received: 20091203

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)        20021028 - 20030708     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030709     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200807 11      Highest Rank/Rate: DC 2
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.15
Awards and Decorations ( per DD 214):      (3) (2)

Periods of UA /C ONF :

NJP :
- 20040923 :      Article , Failure to obey order or regulation
         Article , Drunkenness
         Awarded: Suspended: FOP

- 20050722 :      Article , Failure to obey order or regulation
         Awarded: Suspended:

- 20080320:      Article , Failure to obey order or regulation
         Article , Assault consummated by battery
         Article , Communicating a threat
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:
- 20040923 :      For misconduct resulting in NJP (Article 92 ; failure to obey order or regulation ) (Article 134; drunkenness)
- 20050722 :      For misconduct resulting in NJP (Article 92; failure to obey order or regulation)

Administrative Corrections to the Applicant’s DD 214

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

         “ 08 JUL 11”
         “ 05 00 03 ”

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 20 May 2008 until 9 November 2009, 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 w ants to use the GI Bill to attend college.
2 .       Applicant contends he w as kept on active duty beyond E xpiration of Active Obligated Service (EAOS) date.

Decision

Date: 20 1 1 0128             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 included NAVPERS 1070/613 (Page 13) warnings and non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( F ailure to obey order or regulation, 3 specifications) , Article 128 ( Assault consummated by battery, 1 specification) , Article 134 (Drunkenness, 1 s pecification), and Article 134 (Communicating a threat, 1 s pecification). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request General Court-Martial Convening Authority review .

: (Non - decisional) The Applicant wants to receive the GI Bill to pay for college. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no law or requirement to grant re-characterization of a discharge base 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. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge .

: (Decisional) ( ) . The Applicant contends he was kept on active duty beyond his EAOS of 8 July 2008 , completing more than five years of service. Per regulations , a member may not involuntarily be extended beyond his EAOS for the sole purpose of administrative separation processing. In addition, for m ember s separated upon expiration of enlistment or fulfillment of service obligation , the characterization will be Honorable unless General is warranted on the basis of the Enlisted Performance Evaluation System. The NDRB conducted a thorough review of the Applicant’s service record and found irrefutable evidence that the Applicant was discharged on 11 July 2008, three days after his EAOS. The Board found no evidence of the Applicant ever requesting or agreeing to such an extension. The Board concluded that the Applicant was involuntarily kept on active duty beyond his EAOS for the sole purpose of administrative separation processing , rendering his discharge improper . Due to the impropriety, t he Board voted 4 to 1 to upgrade the characterization of service and voted unanimously to change the narrative reason for separation . Full relief granted .

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 .

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

NAVY | DRB | 2009_Navy | ND0901579

Original file (ND0901579.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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 authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2010_Marine | MD1001603

Original file (MD1001603.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 fifteen...
NAVY | DRB | 2013_Navy | ND1301657

Original file (ND1301657.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants an upgrade to be eligible for Department of Veterans Affairs (VA) benefits.2. ” 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 authority to...
NAVY | DRB | 2009_Navy | ND0902465

Original file (ND0902465.rtf) Auto-classification: Denied

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. 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...
USMC | DRB | 2010_Marine | MD1000548

Original file (MD1000548.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 ” Additional Reviews :...
USMC | DRB | 2014_Marine | MD1400629

Original file (MD1400629.rtf) Auto-classification: Denied

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. With this misconduct, the Applicant met the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...
USMC | DRB | 2013_Marine | MD1300255

Original file (MD1300255.rtf) Auto-classification: Denied

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 fifteen years from the date of discharge. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the...
USMC | DRB | 2012_Marine | MD1200719

Original file (MD1200719.rtf) Auto-classification: Denied

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 fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2011_Marine | MD1101199

Original file (MD1101199.rtf) Auto-classification: Denied

The NDRB is not authorized to upgrade a discharge for pay recoupment.Issue 3: (Decisional) (Equity/Propriety) RELIEF NOT WARRANTED. 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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .The Applicant remains eligible for a...
USMC | DRB | 2009_Marine | MD0902541

Original file (MD0902541.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19960920 - 19970824Active:19970825 - 2001061120010612 - 20020603 Period of Service Under Review: Date of Current Enlistment: 20020604Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070209Highest Rank:Length of Service: Year(s)Month(s)06 Day(s)Education Level: AFQT:62MOS: 5811Fitness Reports: /ReviewedAwards and Decorations (per DD...

Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000536

Similar Decisions