Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001184

Original file (ND1001184.rtf) Auto-classification: Denied

ex-SR, USNR

Current Discharge and Applicant’s Request

Application Received: 20100408

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:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19980128     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010803      Highest Rank/Rate: SN
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 00 D a y ( s )
         Active: Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.33

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : 19981231- 19990111 (11 days); 19990501- 19990503 (1 day); 1990524- 19990604 (11 days); 19990607- 19990610 (3 days) ; 20000810-20000819 (9 days); 20000819-2000828 (8 days); 20000901-20001027 (46 days); 20010118-20010327 (69 days); 20110111-20010117 (6 days) / (20001116-20001130 (15 days)

NJP :
- 19990114 :      Article (U nauthorized absence - 2 specifications : totaling 12 days)
         Article (Failure to obey a n order or regulation )
         Article 134 (Communicating a threat)
         Awarded: Suspended:

- 19990610 :      Article (U nauthorized absence - 5 specifications : totaling 15 days)
         Article (Failure to obey an order or regulation by not bringing dress whites for inspection )
         Awarded: Suspended:

- 20010518 :      Article ( U nauthorized absence by failing to go to Restricted Personnel Muster )
         Awarded: Suspended:

S CM :
- 20001116 :       Article (U nauthorized absence - 3 specifications : 9 days, 8 days and 46 days – totaling 63 days)
         Art icle (W illfully disobeying superior commissioned officer)
         Art icle (Insubordinate conduct toward a Chief Petty Officer - 2 specifications )
         Art icle (Communicating a threat)
         Sentence : (20001116 – 20001130 , 15 days )

- 20010502 :       Art icle (U nauthorized absence - 2 specifications : 69 day and 6 days – totaling 75 days)
         Sentence :

SPCM: C C :

Retention Warning Counseling :
- 19990203 :       For absence from unit (2 specifications) on 19981223 and 19981231, failure to obey a lawful order by not participating in remedial PRT and communicating a threat.
- 20001214 :       For absence from unit (3 specifications), willful disobedience of a superior commissioned officer, disrespect/disobeying a chief petty officer , and communicating a threat.

Administrative Corrections to the Applicant’s DD 214

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

         “ 98DEC31 TO 99JAN10, 99MAY24 TO 99JUN03, 99JUN07 TO 99JUN09, 00AUG10 TO 00AUG18, 00AUG19 TO 00AUG27, 00SEP01 TO 00OCT26, 00NOV16 TO 00NOV30, 01JAN11 TO 01JAN17, 01JAN18 TO 01MAR26 ”

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 32 effective 8 May 2001 until 14 October 2001,
Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 seeks an upgrade for educational opportunities.
2 . The Applicant contends his discharge was improper , because he finished his service obligation (contract).

Decision

Date: 20110609 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete 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 included NAVPERS 1070/613 (Page 13) warning s , for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence - 8 specifications , totaling 28 days), Article (Failure to obey an order or regulation - 2 specifications) , and Article 134 (Communicating a threat) , and for of the UCMJ: Article (Unauthorized absence - 5 specifications , totaling 138 days), Article (Willfully disobeying superior commissioned officer), Article (Insubordinate conduct toward a Chief Petty Officer - 2 specifications) and Article (Communicating a threat). The Applicant finished his contract obligation and was discharged from the Navy.

: (Nondecisional) The Applicant seeks an upgrade for 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.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because he finished his service obligation (contract). Pursuant to MILPERSMAN 1910-104, a member separated upon expiration of enlistment or fulfillment of service obligation is eligible for a character ization of Honorable, unless a G eneral is warranted on the basis of the Enlisted Performance Evaluation Syst em; a member is eligible for a General (Under Honorable C onditions) if during the current enlistment, the member’s final evaluation Overall Trait Average (OTA) is 2.49 or below. The Applicant’s service record reflects a counseling, dated 21 July 2001, stating that the determination of his overall characterization of service (General) was due to his history of misconduct (3 NJPs and 2 SCMs). The NDRB only had one Enlisted Performance Evaluation to base its decision, for which the OTA was 1.33. With missing evaluation reports, the NDRB presumed regularity in the command’s actions and determined that, in view of his multiple and serious instances of misconduct, the Applicant’s OTA was below the 2.49 ne cessary to receive an Honorable discharge at the end of his contract. Therefore, the NDRB determined that the command properly discharged the Applicant and that his characterization accurately reflects his service to this country. 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment/Educational Opportunities 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 | ND1001184

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