Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000849

Original file (ND1000849.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20100217

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)        20010821 - 20020819     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020820     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050727      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 38 (09/2000), 55 (12/2003)
Evaluation M arks:         Performance: NOB ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.50 (1)

Awards and Decorations ( per DD 214):      (2) JMUA (2) (2)

Periods of UA /C ONF :

NJP :

- 20040130 :       Article (Failure to obey order, regulation), 20040129
         Awarde d : Susp ended: (8 days) (6 months)

- 20050715 :       Article (Insubordinate conduct toward superior noncommissioned officer), 20050621
         Article 107 (False official statement), 20050629
         Awarded: (to E-2) Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 20040131 :       For deficiency in your performance and conduct in violating UCMJ Article 92 (Failure to obey an order or regulation).

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.        Applicant contends the misconduct that led to his discharge resulted from improper conduct by an E-9 (Master Chief).
2.       Applicant contends his in-service performance warrants consideration for an upgrade to Honorable .

Decision

Date : 20 1 1 03 10             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 identif ied two decisional issues for t he 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 proprie ty. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning (31 Jan 2004) for violation of the Uniform Code of Military Justice ( UCMJ) Article 92 (Failure to obey an order or regulation) and for o f the UCMJ: Article 91 ( Insubordinate conduct toward superior noncommissioned officer, 21 Jun 2005, specifics NFIR ) ; Article 92 ( Failure to obey order, regulation, 29 Jan 2004, specifics NFIR ), and Article 107 ( False official statement, 29 Jun 2005 , specifics NFIR ) . Violation of UCMJ Articles 91, 92, and 107 are each considered serious offenses and are punishable by 6 months to 5 years confinement and a Bad Conduct Discharge if awarded at trial by punitive courts-martial (Special or General). Based on the offenses committed by the Applicant, command opted not to refer him to trial by court-martial, but instead chose to process for administrative separation on the basis of Misconduct—Serious Offense and Misconduct—P attern of M isconduct . When notified of administrative separation processing using the procedure on 18 Jul 2005 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board .

: (Decisional) ( ) . The Applicant contends the misconduct that led to his discharge resulted from improper conduct by an E-9 (Master Chief). The Applicant implies he was treated unfairly by his command to include verbal assault/harassment by a Master Chief . Since the NDRB is not an investigative body , specific allegations of assault or harassment should be submitted to an appropriate law enforcement organization or the Naval Inspector General's Office . In reviewing discharges, t he government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was subject to assault/harassment and that he was wrongfully discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Commanding Officer’s (Naval Air Technical Training C enter ) recommendation for separation is just that , a recommendation. The Separation Authority (Commander, Nav al Personnel Development Command) determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. The Applicant was notified on 18 Jul 2005 that the least favorable character of service he could receive was Under Other Than Honorable Conditions. On 19 Jul 2005, the Applicant’s Commanding Officer recommended a General (Under Honorable Conditions) discharge to the Separation Authority. On 20 Jul 2005, the Separation Authority, after consideration of the Applicant’s total in-service performance and the facts and circumstances surrounding his misconduct, directed that he be separated as recommended by the Commanding Officer. After careful review, the Board found no evidence of impropriety and determined that the character of service awarded the Applicant at the time of discharge was equitable and in accordance with the U.S. Nav al Military Personnel Manual i n effect at the time of his separation. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service performance warrants consideration for an upgrade to Honorable . The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Although the service records do not contain evaluation reports for the Applicant during his tour aboard ship (Dec 2002-May 2005), t here is evidence in the record that reflects the Applicant consistently violated the UCMJ and failed to maintain the Nav y’s Core Values of H onor, C ourage, and C ommitment. The evidence of record , which included one Page 13 Retention Warning, two NJPs , and disenrollment from Aviation Electronics Technician ‘A’ school , d oes not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. When a member’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (U nder H onorable C onditions ) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct, which forms the primary basis for determining the character of his service , demonstrated that he was unable to maintain the high standards of conduct expected of members of the Navy, and that he was unfit for further service. Accordingly , the Board determined this issue did not provide a basis for which relief could be granted. 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 administrative separation 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 for additional information.

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 | ND1000849

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