Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000618

Original file (ND1000618.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20091215

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)        20030924 - 20040 803             Active:
                  20050211 - 20050727 (COG)

Period of Service Under Review:
Date of Current Enlistment: 20050728     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070310      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.7 ( 3 )        OTA: 2.50 (3)

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20051117 :      Article (Failure to obey order, regulation , underage drinking ) , 20051011
         Awarded : Susp ended:

- 2 0061222 :      Article (Absence without leave)
         Article (Failure to obey order, regulation ), 2 specifications
         Awarded : Susp ended:

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:

         “ MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] ”

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 :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, 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 .

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

Applicant’s Issues

1.       Applicant seeks an upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant seeks an upgrade to broaden employment opportunities.
3 .       Applicant contends his youth and immaturity led to the misconduct that resulted in his discharge.
4.       Applicant contends his discharge was too harsh and did not rate the same characterization as drug offenders.

Decision

Date: 20 1 1 02 03             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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service contain ed for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, specifics NFIR ) and Article 92 ( Failure to obey order or regulation, 3 specifications: underage drinking on 11 Oct 2005, and two other incidents not specified). Based on the offenses committed by the Applicant, command administratively processed for separation. Though th e NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board , the Applicant’s DD-214 separation code of “HKQ , ” as listed in block 26, reveals that the Applicant waived his right to defend himself or present matters on his behalf at an administrative separation board proceeding prior to his discharge from the Navy.

Issues 1-2 : (Nondecisional) The Applicant seeks an upgrade to reenlist in the U.S. Armed Forces and to broaden employment opportunities. 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment and a request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Additionally, 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.

: (Decisional) ( ) . The Applicant contends his youth and immaturity led to the misconduct that resulted in his discharge. The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct. While he may feel this was the underlying cause of his misconduct, the record , to include comments made on each of his Evaluation and Counseling Reports, reflects his misconduct was willful and demonstrated he was unfit for further service. The NDRB recognizes that serving in the U.S. Navy is challenging. However, Sailors are expected to uphold the high standards of conduct, evidenced in the Navy Core Values of Honor, Courage, and Commitment, no matter the environment or mission in which assigned. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An U nder O ther T han H onorable C onditions discharge is warranted when a service member’s commission or omission of an act constitutes a significant departure from the conduct expected from a member of the Naval service . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors , regardless of his age, grade or length of service , and falls short of what is required for an upgrade.

Issue 4: (Decisional) ( ) . The Applicant contends his discharge was too harsh and did not rate the same characterization as drug offenders. Regulations permit relief on equitable grounds if the Applicant’s discharge is i nconsistent with the established standards of discipline of the Naval service. Based upon the available records, nothing indicates that the Applicant’s discharge was inconsistent with the standards of discipline in the United States Navy. Though the Applicant’s service records are incomplete and do n o t incl ude the administrative separation package documentation , the evidence reviewed supports the conclusion that the Applicant committed a serious offense, was processed for administrative discharge in accordance with the U.S. Navy Military Personnel Manual (MILPERSMAN), and that separation from the Naval service was appropriate . Further, the service records contained a 15 Feb 2007 memo from the Commander, Navy Region Southeast that directed the Applicant be separated from the Navy under MILPERSMAN section 1910-142 (Commission of a Serious Offense) with an Under Other Than Honorable Conditions character of service and separation code of HKQ (Commission of a Serious Offense). 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. Without substantial, credible information to question the presumption of regularity or to otherwise provide evidence of inequity of the discharge , the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, 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 | ND1000618

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