Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001443

Original file (ND1001443.rtf) Auto-classification: Denied

ex-CSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20100518

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)        20060210 - 20070128     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080731      Highest Rank/Rate: CSSN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.50

Awards and Decorations ( per DD 214):

Periods of C ONF :
Lost time per DD214: 20080111; 20080620-20080623, 4 days; 20080704 to an unspecified date but prior to 16 July 2008

NJP :

- 20080116 :       Article ( Absence without leave; specifically, absen t from his unit, without authority on 20080111 )
         Awarded : Susp ended:

- 20080408 :       Article 86 ( Absence without leave; specifically- failure to go to appointed place of duty ) , 5 specifications
         Specification 1: 20080317
         Specification 2: 20080324
         Specification 3: 200803 25
         Specification 4: 200803 26
         Specification 5: 20080404
         Awarded : Susp ended:

- 20080624 :       Article ( Absence without leave; specifically, absented himself from his unit, without authority from 20080620 to 20080624, ended by surrender to military authority)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

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 23, effective 20 May 2008 until 9 November 2009, 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. The Applicant seeks an upgrade in the characterization of his service at discharge and a change in his reentry code to facilitate reenlistment and access to Department of Veterans Affairs (VA) educational benefits.

Decision

Date: 20 1 1 0818 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 identify any decisional issues 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 any additional documentation to rebut the NDRB’s presumption of regularity in governmental affairs. The Applicant ’ s service record contained three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically , Article 86 (Absent without leave - absenting himself from his unit without authority and for failure to be at his appointed place of duty - 7 specifications) . Additionally, the Applicant ’ s service record includes absenting himself from his unit without authority - and breaking restriction while doing so - for an undetermined period of at least 10 days, which was not adjudicated at any nonjudicial punishment or judicial punishment (trial by courts martial).

The Applicant was discharged from the Naval Service due to having established a pattern of misconduct as defined by Article 1910-140 of the Naval Military Personnel Manual . The Separation Authority determined that the Applicant’s documented misconduct of record did establish the minimum requirement 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 was warranted. As such, the Separation Authority directed the Applicant be discharged and that he receive an RE-4 reenlistment code (not recommended for reenlistment). The NDRB was unable to review the Applicant’s discharge package as it was not included in his official service record ; in the absence of a discharge package, the NDRB presumed the Applicant was accorded all his administrative rights regarding processing for separation. The documented separation code indicates the Applicant d id not warrant an administrative separation board due to the proposed characterization of service.

The Applicant seeks an upgrade in the characterization of his service at discharge in order to reenlist in the military and to facilitate access to VA education benefits . The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or Veterans Affairs benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “ RE ” code is, in itself, a bar to reenlistment. Regarding reentry codes, only the Board for Correction of Naval Records can make changes to reenlistment codes.

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 | ND1001443

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