Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001246

Original file (ND1001246.rtf) Auto-classification: Denied

ex-SK1, USN

Current Discharge and Applicant’s Request

Application Received: 20100420

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)        19880711 - 19890625     Active: 19890626 - 19930624
                  19930625 - 19970601
                  19970602 - 19990527
                  19990528 - 20020521
Period of Service Under Review:
Date of Current Enlistment: 20020522     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060503      Highest Rank/Rate: SK1
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 66 /80
Evaluation M arks:         Performance: 3.8 ( 6 )      Behavior: 3.3 ( 6 )        OTA: 3.72

Awards and Decorations ( per DD 214):      Rifle Pistol (2) S DPP(4) (3) (3)

Periods of UA/ C ONF : UA: 20050602 - 20050714, 42 days / CONF: NONE

NJP :

S CM :

SPCM:

C C :

CC ARREST:
- 20020602 :       Offense: One count of cruelty to children in the first degree and one count of cruelty to children in the
                  second degree a waiting trial .

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890626 UNTIL 020521 ”
         “ (42) 2002JUN02 TO 2002JUL14 ”

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 s 128 (Assault) .

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

Applicant’s Issues

1.        Applicant seeks an upgrade to obtain GI Bill benefits.
2.       Applicant contends his discharge was inequitable due to an isolated incident in 200 months of service.

Decision

Date: 20 1 1 06 16             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 one decisional issue for the Board ’s consideration . T he Board co nducted a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning related to his g rand j ury i ndictment on two counts of cruelty to children (First degree and Second degree) in the state of Georgia. There was no evidence within the current enlistment of commanding officer’s nonjudicial punishment (NJP) or trial by courts-martial. Based on the civil charges of child cruelty , the g rand j ury indictment against the Applicant (with no established date set for trial) , and corroborative evidence within the Naval Criminal Investigative Service investigation report, the Applicant’s command administratively processed him for separation. When notified of administrative separation processing using the procedure on 8 Mar 2006 , the Applicant initially waived his right to submit a written statement and elected his rights to consult with a qualified counsel and request an administrative separation board . However, after consulting with counsel, the Applicant submitted a Conditional Waiver Request (22 Mar 2006) to his chain of command in which he offered to waive his right to the administrative board in consideration for a General (Under Honorable Conditions) discharge. The Applicant was subsequently discharged from the Navy on 3 May 2005 with a General (Under Honorable Conditions) discharge due to Misconduct (Serious Offense).

: (Nondecisional) The Applicant seeks an upgrade to obtain GI Bill benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to an isolated incident in 200 months of service. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline . V iolation of UCMJ Articles 128 meet s this standard . Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s current enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A General (Under Honorable Conditions) d ischarge 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 service was marred by his violation of UCMJ Article 128 , which constitute s the “commission of a serious offense , ” the discharge basis in this case. These specific violation s are punishable by a B ad C onduct or D ishonorable D ischarge and up to 3 years of imprisonment if adjudicated at trial by a c ourt- m artial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , especially one of his grade and total length of service , and f alls short of w hat is required for an Honorable upgrade in the characterization of service.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the 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 | ND1001246

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