Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001193

Original file (ND1001193.rtf) Auto-classification: Denied

ex-EOCR, USN

Current Discharge and Applicant’s Request

Application Received: 20100120

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)        20011211 - 2002041 5     Active:

Period of Service Under Review:
Date of Current Enlistment: 200204 16     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031117      Highest Rank/Rate: EOCN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         Performance: 2.0 ( 3 )      Behavior: 1.7 ( 3 )        OTA: 1.61

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /C ONF : UA: 20021023-20021027, 4 days / CONF:

NJP :

- 20021202 :      Article ( Absence without leave - A bsented himself from his unit without authority and did so remain absent for 4 days; 20021023-20021027 )
         Awarded: Suspended: [suspended for 6 months, unless sooner vacated]

- 20031024 :      Article ( Absence without leave ) , 3 specifications [details not available in service record]
         Article (Missing movement), 3 specifications
         Awarded: NFIR Suspended: NFIR [Extracted from Evaluation Report and Counseling Record dated 20031118]

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:

         Block 4a, Grade, Rate or Rank, should read: “EOCR ”
         Block 4b, Pay Grade, should read: “E1 ”
         “ 02 APR 16 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ Unable to determine ”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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.       Nondecisional issues: The Applicant seeks a change in characterization of service at discharge to General (Under Honorable Conditions) in order to gain eligibility for Department of Veterans Affairs (VA) benefits and improve employment opportunities.

2.       Decisional Issues: The Applicant contends that mitigating circumstances at the time of his misconduct warrants consideration for an upgrade in the characterization of his service at discharge.

Decision

Date: 20 1 1 0609    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 NDRB 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 Applicant identified one decisional issue related to equity for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 22 on a four-year enlistment with a twelve-month extension with guaranteed training as an equipment operator ; he completed one year and seven months of his five year obligated service contract. The Applicant ’ s service record included two nonjudicial punishments due to violations of the Uniform Code of Military Justice : Article 86 (Absence without leave , 4 specifications) and A rticle 87 (Missing movement , 3 specifications). The Applicant was discharged from the Naval Service due to Misconduct , s pecifically, having established a pattern of misconduct as defined by Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN). The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 06 November 2003 , the Separation Authority directed the Applicant be discharged for the reason as stated and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment.

The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in his official service record. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The separation code on the Applicant’s DD Form 214 indicates that a discharge hearing board was warranted, but that the Applicant waived his right to request a hearing before a board. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB.

Nondecisional Issues. The Applicant seeks a change in characterization of service at discharge to General (Under Honorable Conditions) in order to gain eligibility for VA benefits and improve employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits or facilitat ing employment opportunities. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Decisional Issue) ( ) . The Applicant contends that mitigating circumstances at the time of his misconduct warrants consideration for an upgrade in the characterization of his service at discharge. T he NDRB 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. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant’s documented misconduct of record, coupled with a formal counseling advising him of the possibility of separation if he failed to take corrective actions, meet the established requirement for a pattern of misconduct narrative reason for separation. Furthermore, certain serious offenses warrant separation from the service to maintain proper order and discipline; violation of Article 87 is such an offense. Violation of th is article of the UCMJ may result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge (Bad Conduct Discharge) with possible confinement, if adjudicated, and awarded, as part of a sentence by a special or general court-martial. The command did not pursue punitive punishment and discharge options , but instead, chose t he more lenient administrative separation process. As such, the NDRB determined that the Applicant ’ s discharge was proper as issued; accordingly, relief based on issues of propriety, is denied.

While the Applicant may feel his personal family situation was the underlying cause of his misconduct, he provided no documentation in support of this claim. The NDRB recognizes that many of our service members are young at the time they enlist for service and experience family trauma, but most still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of immaturity or family problems to be a mitigating factor or a sufficient reason to offset misconduct. A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. Moreover, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct including multiple unauthorized absence s and missing his ship ’ s movements. Additionally, the Applicant was counseled regarding possible discharge if he failed to take corrective actions and comply with the expected standards of conduct of a Sailor in the United States Navy. After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, reflected conduct involving one or more acts or omission s that constituted a significant departure from the conduct expected of members of the Naval Service. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate; accordingly, relief is 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 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 | ND1001193

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