Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001044

Original file (ND1001044.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20100202

Characterization of Service Received:

Narrative Reason for Discharge: REDUCTION IN FORCE
Authority for Discharge: MILPERSMAN 1910-102[SEPARATION BY REASON OF SELECTED CHANGES IN SERVICE OBLIGATION]

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19981021 - 19981117     Active:

Period of Service Under Review:
Date of Current Enlistment: 19981118     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040716      Highest Rank/Rate: HM3
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.14

Awards and Decorations ( per DD 214):      Pistol

Periods of C ONF : 2003 0806 - 20040206 (185 days)
Periods of UA:   NONE

NJP :

- 20010926 :      Article ( Unauthorized absence )
         Article ( Failure to obey order or regulation )
         Awarded: Suspended:

S CM :

SPCM:

GCM:

- 20040206 :      Article ( Failure to obey order or regulation )
         Article ( Assault )
         Sentence: CONF

C C :

Retention Warning Counseling:

- 20040 4 26 :      On 31 March 2004 you were given a counseling for your 3 ^rd instance of u nauthorized a bsence. You were to be at the BAS at 0530 for physical training followed by a uniform inspection at 0700. You arrived at 0730, two hours late. You acknowledged this on your written counseling sheet stating that you slept through your alarm . You were subsequently advised to obtain a second alarm clock.

         On 14 March 2004, you were to be at t he BAS at 0645 for muster. You arrived at 0700 without explanation.

         On 14 March 2004 , you were sent as medical coverage for a pistol range. Upon completion of the range , you failed to return to the BAS to receive word , or be secured.

         On 15 March 2004, you were to be at the BAS at 0645 for muster. You arrived at 0700 without explanation. At that time, you received another written counseling sheet for the three counts of u nau t horized absence during 14 and 15 March 2004. At that time , you were given a week period of Extr a Military I nstruction requiring you to report to the LPO at 0600 starting 19 April 20 0 4 and ending 23 April 2004.

         On 19 April 2004, you were to report at 0600 to the LPO for the first day of EMI. You reported at 0615 stating problems with your alarm. During that week , you were consistently late and failed to report on time once during your period of EMI.

         On 26 April 2004 , you were to report to the BAS at 0600 for physical training . You called at approximately 0630 stating you were at the front gate. You reported at 0730.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article1910-102 (previously 3620100), Separation by Reason of Selected Changes in Service Obligation (Active Duty and Inactive Naval Reservist).

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 wants the characterization of his discharge and reentry code changed so he can reenlist in the military.
2.       Applicant believes p ost-service conduct warrants consideration for upgrading the characterization to Honorable.

Decision

Date: 20 1 1 0505             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall REDUCTION IN FORCE.

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) warning and non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized Absence) and Article 92 ( Failure to obey an order or regulation). It also indicated the Applicant was convicted at a G eneral C ourt- M artial (GCM) for violations of the UCMJ: Article 92 (Failure to obey order or regulation) and Article 128 (Assault) . Documentation found in the Applicant’s service record indicates he was a rrested on 2 August 2003for domestic violence assault. On 6 August 2003, h e began pretrial confinement for that incident. On 25 November 2003, his contract was extended for 12 months pending legal hold. On 6 Feb 2004, the Applicant was convicted at GCM. He was discharged prior to his end of active obligated service due to reduction in force.

: (Non - decisional) The Applicant wants the characterization of his discharge upgraded and reentry (RE) code changed so he can reenlist in the military. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Neither a less than fully honorable discharge nor an unfavorable RE code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. S ince the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, it is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Decisional) ( ) . The Applicant contends his p ost-service conduct warrants consideration for upgrading his discharge to Honorable. H e provided a copy of his license as a practical nurse , certification of having no history of being a child abuse r in Pennsylvania, proof of U.S. citizenship, marriage license, and a certificate of completion o f higher education. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The documentation submitted along with the DD Form 293 was not sufficient to evaluate his pos t-service character and conduct. His efforts needed to have been more encompassing. Documentation to support an upgrade based on post-service conduct includes: verifiable continuous employment record, character witness statements, documentation of community or church service, certification of non-involvement with civil authorities, and evidence of financial stability or letters of good standing from financial institutions (including banks and credit card companies). 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. 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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain REDUCTION IN FORCE . 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 | ND1001044

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