Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000609

Original file (ND1000609.rtf) Auto-classification: Denied

ex-ICFN, USN

Current Discharge and Applicant’s Request

Application Received: 20091216

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)        19941108 - 19941114     Active: 19941115 - 20001114 (Hon)
                                    20001115-20040407 (Hon)

Period of Service Under Review:
Date of Current Enlistment: 20040408     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051109      Highest Rank/Rate: IC2
Length of Service : Y ear ( s ) M onth ( s ) 1 D a y ( s )
Education Level:        AFQT: 92
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.29

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /C ONF :

NJP :

- 20041122 :       Article Article (Unauthorized absence, 3 specifications: 10 Oct-13 mins, 11 Oct-1hr 8mins, 23 Oct-1hr 15mins).
         Article (Failure to obey an order or regulation: failure to ensure his telephone recall was up to date).
         Awarded : Susp ended:

- 20050411 :       Article (Unauthorized absence , 2 specifications: 15 March-1 hour, 16 March-1 hour, 29 March-15 mins )
         Awarded : Susp ended: Vacated 20 April 2005.

- 20051011 :       Article ( Unauthorized absence: Failure to go to appointed place of duty ) .
                  Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :

- 20050713 :       For processing for administrative separation for pattern of misconduct. The administrative board recommended separation with a General (Under Honorable Conditions) characterization, and to suspend the separation for 6 months. The commanding officer approved the board’s recommendation on 6 July 2005 and directed that unless sooner vacated or remitted, execution of the separation shall be remitted upon completion of the probationary period, upon termination of your enlistment or period of obligated service, or upon decision of the separation authority that the goal of your rehabilitation has been achieved.

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.        The Applicant would like his re-enlistment code changed to RE-1 so he can enlist in the National Guard and would like GI Bill benefits.
2.       The Applicant contends a sleep disorder caused him to be late for work on several occasions , resulting in nonjudicial punishments and eventual administrative separation.

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 discharg e 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) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized absence, 6 specifications ) and Article ( , ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The administrative board voted 3-0 to separate with a General (Under Honorable Conditions) characterization. The board also voted 3-0 to suspend the separation for six months. The Applicant’s commanding officer approved the board’s recommendation on 6 July 2005. No documentation of vacation was found in the record, but the Applicant was administratively separated on 9 Nov 2005 with a General (Under Honorable Conditions) characterization of service.

: (Non-decisional) The Applicant would like his re-enlistment code changed to RE-1 so he can enlist in the National Guard and would like GI Bill benefits. 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. As to GI Bill benefits, t he 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. T he 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.

: (Decisional) ( ) . The Applicant contends a sleep disorder caused him to be late for work on several occasions , resulting in nonjudicial punishments and eventual administrative separation. The Applicant submitted medical documentation showing he had consistently sought medical assistance for sleep problems since August 1999. The Applicant was finally diagnosed with Mild Obstructive Sleep Apnea-Hypopnea in June 2005 by a civilian care provider. These findings were acknowledged and acted upon by Navy medical providers with treatment in July 2005. Careful examination of the record revealed the Applicant had been late for work on numerous occasions due to oversleeping as well as child care and vehicle problems. The record shows the Applicant’s command did not formally address many of these occurrences, s ought to work with him, taking formal legal action only after his continued tardiness inordinately impacted the mission and good order and discipline of the command. The NDRB recognizes the Applicant’s condition may have caused him some difficulty waking up to go to work. However, t he NDRB determined the command was extremely accommodating , and the Applicant failed to take reasonable and necessary measures to fulfill his duties. An upgrade would be inappropriate.

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 | 2010_Navy | ND1000609

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