Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001459

Original file (ND1001459.rtf) Auto-classification: Denied

ex-ICFR, USN

Current Discharge and Applicant’s Request

Application Received: 20100506

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: 19980415     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030116      Highest Rank/Rate: ICFN
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 13 D a y ( s )
         Active   Y ear( s ) M onth( s ) 19 D a y ( s )
Education Level: 12      AFQT: 66
Evaluation M arks:         Performance: 3.0 (1)     Behavior 2.0 (1)         OTA: 2.71

Awards and Decorations ( per DD 214):      NONE

Periods of UA : 19990401 (1 day ) ; 19990903-19990910 (7 days)

Periods of Confinement: 20000520-20000809 (81 days, Pre-Trial Confinement); 20000809-20000920 (41 days - Post - Trial C onfinement)

NJP :
- 19981209 :      Article (Absence without leave, specifics not found in record )
         Awarded: Suspended: (7 DAYS)

- 19990423 :      NFIR [Extracted from NAVPERS 1070/604 pg 3)
         Awarded: NFIR Suspended: NFIR

- 19990921:      Article (Absence without leave 19990903-19990910 , 7days )
         Awarded: RIR Suspended:

- 200005 10 :      Article 86 ( Absence without leave; UA)
         Article 92 (Failure to obey order or regulation)
         Awarded : RIR FOP RESTR EPD Susp ended: NFIR

S PCM:
- 20000809 :      Article (Absence without leave 20000518-20000519 , 2 days )
         Article 108 (Military property loss, damage , destruction )
         Article (Wrongful use, possession, etc., of schedule I controlled substance - marijuana )
         Article (General Article , 3 specifications)
         Specification 1: Breaking restriction on 19991 0 14
         Specification 2: Breaking restriction on 20000518
         Specification 3: Carr ing a loaded concealed handgun 20000520
         Sentence: (150 DAYS 20000519-20000809, 8 1 days (pretrial) 200008 10 - 20000920 ,
         4 1 days)

SCM:     CC:

Retention Warning Counseling :

- 20000310 :       For absence without leave as evidenced by you continually failing to report to duty at the prescribed time.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         : “ 19990903-19990907 (7); 20000518-20000519 (2); 2000519-20000920 (122) ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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 to General (Under Honorable Conditions) in order to facilitate access to Department of Veterans Affairs (VA) b enefits (health and education) and to facilitate better opportunities for employment.

2.       Decisional issues : The Applicant did not identify any issues related to inequity; however, by submission, he has requested consideration for clemency in the form of an upgrade in the characterization of his service at discharge.

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

In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed, by the NDRB, to be established facts. As such, th e Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s service record indicates he entered military service at age 1 9 on a n 8 -year enlistment contract as a U.S. Navy Reserve Training and Administration of Reserves ( TAR ) p rogram member, obligating at least his first four years on active duty . The Applicant’s enlistment record reflects his entry into military service with a wa i ver for pre-service drug use ( marijuana ) and a waiver for a serious law offense for possession of drug paraphernalia. The Applicant acknowledge d his full understanding of the Navy Policy on Illegal D rug U se - in writing - as a function of his enlistment wa i ver process.

The Applicant’s period of service under review reflect s one NAVPERS 1070/613 retention-counseling warning . Additionally, his record of service contains four non-judicial punishment s (NJPs) for violation s of the Uniform Code of Military Justice (UCMJ) , specifically , violation of Article 86 (Unauthorized absence and failure to go to appointed place of duty, 3 specifications) and Article 92 ( Failure to obey orders or regulations). Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 09 August 200 0 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 86 (Unauthorized a bsence - 2 days) , Article 108 (Military property loss, damage, destruction), Article 112(a) ( W rongful use, possession, etc of illegal drugs - marijuana) , Article 134 (Breaking restriction , 2 specifications) , and Article 134 ( P ossession and carrying a loaded, concealed handgun ). A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement, the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charges and he submitted a signed, written stipulation of the facts related to the charged misconduct . In consideration, the convening authority agreed to withdraw the charges from a General Court - Martial venue . Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge , reduction in grade to E-1, and confinement for a period of 1 50 days. The case was submitted for review without assignments of error to the U.S. Navy - Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 22 November 2002 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 16 January 200 3 . Besides his DD Form 293 and a personal statement to the VA , the Applicant provided no other documentation in support of his request f or consideration by the NDRB.

Nondecisional issue – The Applicant seeks an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) in order to facilitate access to VA b enefits and to facilitate better employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.

Board Issue: (Clemency) - RELIEF NOT WARRANTED. The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review; however, the Applicant did not identify any specific issues of inequity for the NDRB’s consideration. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s service record documents a period of service of approximately 2 years and 4 months in which time he was subject to four Nonjudicial Punishments and a trial by S pecial C ourt - M artial. The Applicant ’ s misconduct includes a pattern of misconduct related to unauthorized absences and failures to be at his appointed place of duty and breaking lawful orders of restriction. The Applicant was assigned to an extensive period of limited duty as a result of misconduct when he attempted to flee restriction by jumping from his assigned ship on to the pier approximately 30 feet below , result ing in the fracturing of both ankles. The Applicant again fled from an authorized period of restriction; d ue to the Applicant ’ s refusal to conform to the expected conduct of a United States Sailor and the detrimental effect to the good order and discipline of the command, the Command referred the charges to trial by General Court - Martial. The charges were eventually pleaded down to a trial at Special Court - Martial in accordance with an agreed upon Pre-Tri a l Agreement. The stated misconduct resulted in the S pecial C ourt - M artial awarding a punitive Bad Conduct Discharge , reduction to E-1, and confinement for 1 5 0 days.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially repetitive misconduct. Moreover, despite a servicemember’s prior record of service , certain serious offenses warrant separation from the Navy to maintain proper order and discipline. The wrongful use of a controlled substance, coupled with breaking restriction, destruction of government property, and possession of a concealed, loaded handgun is not minor misconduct. The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the short period of the Applicant’s service, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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 | ND1001459

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