Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001333

Original file (ND1001333.rtf) Auto-classification: Denied

ex-BMSA, USN

Current Discharge and Applicant’s Request

Application Received: 20100504

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)        20010427 - 20010515     Active: 20010516 - 20050513 HON

Period of Service Under Review:
Date of Current Enlistment: 20050514     Age at Enlistment:
Period of E nlistment : 3 Years Extension
Date of Discharge: 20061027      Highest Rank/Rate: BM3
Length of Service : Y ear M onth s 13 D a ys
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.33
Awards and Decorations ( per DD 214):      , , , , , , , OSR

Periods of UA /C ONF :

NJP : 2

- 20060213 :       Article 92 (Failure to obey order or regulation)
         Article 134 ( B reaking restriction)
         Awarded: Suspended:

- 20060825 :      Article 92 (Failure to obey order or regulation ) , 3 specifications
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling : 1

- 200 60213 : For violation of the UCMJ, Article s 92 and 134 , as adjudicated at C aptain ’ s Mast held this date . Advised that failure to take corrective actions or any further violations of the UCMJ could resul t in administrative separation U nder Other Than Honorable Conditions.

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.        Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to be eligible for Department of Veterans Affairs (VA) educational benefits.

2.       Decisional issues : The Applicant did not identify any issues related to the propriety or equity of his discharge for consideration by the NDRB.

Decision

Date: 20 1 1 070 8            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 did not identif y any de cisional issue related to the propriety or equity of his discharge for the NDRB’s consideration; however , 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 did not provide any additional documentation for the NDRB’s consideration , or to rebut the NDRB’s presumption of regularity in governmental affairs.

The Applicant entered military service at age 19 on a four-year enlistment; the Applicant’s enlistment acceptance included a waiver to induction standards due to pre-service illegal drug use (marijuana). The Applicant honorably completed his four-year enlistment contract and executed an immediate reenlistment for three years of obligated service. The Applicant completed one year and 5 months of the three-year enlistment period under review. The Applicant’s official record of service contains one NAVPERS 1070/613 (Page 13) retention-warning counseling regarding his violation of the UCMJ. The Applicant ’ s current period of enlistment under review also contained two nonjudicial punishments for violations of the UCMJ, specifically , Article 92 (Failure to obey order or regulations, 4 specifications) and Article 134 (Breaking r estriction).

The Applicant was discharged from the Naval Service due to Misconduct , specifically, having established a pattern of misconduct as defined by Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN). The Separation Authority reviewed the Applicant ’ s conduct of record during his current enlistment and determined that the documented record of misconduct 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 - General (Under Honorable Conditions) - was warranted. On 29 September 2006 , the Separation Authority directed the Applicant be discharged for the reason as stated and that he receive an RE-4 re entry code (not recommended for reenlistment). The NDRB was unable to review the Applicant’s entire discharge package; however, the Applicant was notified of separation processing on 13 September 2006 . He was advised that the least favorable characterization of service being considered was General (Under Honorable Conditions). Due to incomplete records, t he NDRB was unable to review the A pplicant ’s election of rights. The Applicant did not warrant an administrative separation board due to the proposed characterization of service and not having achieved at least six years of active service.

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

The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs who determine eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance. The Applicant is advised that having completed one enlistment contract of 4 years of honorable service, that he does warrant some benefits from the Department of Veterans Affairs should he request a determination of eligibility review.

(NDRB Review) ( ) . The Applicant did not identify any i ssues related to the propriety or equity of his discharge that the NDRB should consider to re-characterize his discharge. However, the NDRB completed a thorough review of the circumstances that led to the discharge action, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

Propriety - The Applicant was discharged from the Naval Service due to Misconduct , specifically, having established a pattern of misconduct as defined by Article 1910-140 of the MILPERSMAN. Although the administrative discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge. The Separation Authority reviewed the Applicant’s record of service during his current enlistment period, determining that the Applicant’s documented record of misconduct in the current enlistment did establish the minimum requirements for discharge pursuant to a pattern of misconduct. Based upon the available service 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 received a retention counseling warning after his first document misconduct; he violated that retention warning with his own misconduct that resulted in another NJP. Given the two n onjudicial punishments, coupled with a written retention -counseling warning, the required elements for separation based on Misconduct (Pattern of Misconduct) were satisfied. After a detailed review of the facts, circumstances, and issues unique to this discharge action, the NDRB determined that the Applicant was discharged properly in accordance with the M ILPERSMAN. As such, relief based on matters of propriety is not warranted.

Equity - A service member’s characterization of service at discharge is recognition of performance and conduct during an enlistment; it 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 of duties outweigh the positive aspects of the member’s military record. The Applicant chose to violate willfully those rules and regulation established to ensure good order, discipline, and safety of the force. The Applicant’s record of performance and conduct reflected a documented pattern of misconduct - willful violations of the UCMJ based on an inability to comply with rules and regulation. After reviewing the Applicant’s official service record and supporting discharge documentation, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, was honest and faithful . However, the Applicant’s documented misconduct was a significant negative aspect of the member’s conduct or performance of duties and did outweigh the positive aspects of his service record. 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 the discharge process, the NDRB found that the discharge was proper, equitable, and not prejudicial to the Applicant. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. 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 | ND1001333

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