Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001654

Original file (ND1001654.rtf) Auto-classification: Denied

ex-EO3, USN

Current Discharge and Applicant’s Request

Application Received: 20100622

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 A R 19880507 - 19940531 HON     Active: R 19940601 - 19950803 HON
U S A R 19950804 - 19960506 HON   USA 19961115 - 19970717 HON
USNR 19990820 - 20000418 COG

Period of Service Under Review:
Date of Current Enlistment: 2001022 8     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031107      Highest Rank/Rate: EO3
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 4.0 ( 3 )        OTA: 3.79

Awards and Decorations ( per DD 214):      Rifle (Army) NDSM (2) , ALB , ACM , AGCM , SWASM , HSM , NCO PDR , ASR KLM

Periods of UA /C ONF :

NJP :

- 200301 30 :       Article (Violate a general lawful regulation)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20030128 :       For violation of UCMJ, Article 92, F ailure to obey order or regulation

Administrative Corrections to the Applicant’s DD 214

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

         Applicant’s service included service in Operation SOUTHERN WATCH and Operation ENDURING FREEDOM.

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 1910-142, 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 92.

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

Applicant’s Issues

1.       Nondecisional issues : The Applicant seeks corrections to his DD Form 214 to reflect properly his service in a combat zone or imminent danger zone in the Persian Gulf in support of Operation SOUTHERN WATCH and Operation ENDURING FREEDOM.

2.       Decisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge, contending that he was improperly discharged on fraudulent charges, which resulted from a violation of his C onstitutional rights.

Decision

Date : 20 1 1 10 20            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 Board 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 to the NDRB. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant entered active duty N aval service from the Naval Reserves at age 30 on a two-year enlistment with a 24 - month extension as a non-designated seaman, airman, or fireman for the purpose of a rating conversion to the ABE rating under the PRISE III Program ; he completed two years and eight months of his service obligation before being discharged. The Applicant’s enlistment acceptance into the Navy included one waiver to enlistment and induction standards for dependants. The Applicant’s official record of service during his enlistment period documents one NAVPERS 1070/613 (Page 13) retention-counseling warning and one nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) : Article 92 (Failure to obey order or regulations – drinking alcoholic beverages in the barracks in violation of training school regulation s ). Moreover, t he Applicant’s record of service reflects that he was detained and then charged by his command for violation of Article 134 ( Drunkenness ) at 0545 in the morning after being stopped at the gate of the base and being subjected to a breathalyzer test by the MPs . The Command proposed n onjudicial punishment; the Applicant refused NJP and exercised his right to request trial by special or general court - martial. The command opted not to pursue disciplinary action and , instead, processed the Applicant for administrative separation.

O n 30 September 2003 , t he Applicant was notified of the Command’s proposed action to administrative ly separat e him from the Naval Service using the board procedure . T he least favorable characterization of service warranted was Under Other Than Honorable Conditions and the basis for separation give n was Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN) . In response to the notice of separation, the Applicant chose to exercise his right to consult with qualified legal counsel and elected to submit a written statement to the Separation Authority , but waived his right to request an administrative hearing board be convened . The c hain of c ommand endorse d the separation proposal , recommending separation with an Under Other Than Honorable Conditions characterization of his service for Misconduct ( Commission of a Serious Offense ) . The Separation Authority reviewed the proposed discharge action and determined that a preponderance of the evidence supported discharge; however, on 04 November 2003, he directed that the A pplicant be discharged by reason of M isconduct (P attern of M isconduct ) pursuant to Article 1910-140 of the MILPERSMAN. The Applicant was discharged on 07 November 2003 as directed; he was assigned a re-enlistment code of RE-4 (not recommended for reenlistment).

(Nondecisional Issues) The Applicant seeks corrections to his DD Form 214 to reflect his service in a combat zone or imminent danger zone (in the Persian Gulf in support of Operation SOUTHERN WATCH and Operation ENDURING FREEDOM). This is an administrative correction to the Applicant’s DD-214 that is not the function of the NDRB. However, the NDRB did review the Applicant’s service record , and it is noted that the Applicant was stationed aboard the USS Enterprise while deployed to the Persian Gulf/North Arabian Gulf and his service record does reflect that they participated in both Operation SOUTHERN WATCH and Operation ENDURING FREEDOM during the deployment. The NDRB will recommend to the Commander, Nav y Personnel Command that his DD-214 be corrected to reflect his service in a Combat Exclusion Zone .

(Decisional issues) ( ) . The Applicant seeks an upgrade in the characterization of his service at discharge, contending that he was discharged improperly on fraudulent charges, which resulted from a violation of his C onstitutional rights.

Propriety - The Applicant was notified of the intent to administratively separate him from his active duty period of service pursuant to Article 1910-142 of the M ILPERSMAN - Misconduct (Commission of a Serious Offense ) . However, the Separation Authority changed the narrative reason for discharge to Misconduct (Pattern of Misconduct) . The Applicant was not re-notified of the new basis for discharge and was not afforded his right to request an administrative hearing board be convened ; the Applicant was not notified properly of the separation and was not afforded his rights pursuant to the MILPERSMAN. As such, t he NDRB determined that the discharge action, as executed, was improper. Relief based on propriety is warranted.

In cases where no other reason for separation set forth in the MILPERSMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. There is no other narrative reason for separation that accurately describes the reason the Applicant was separated; therefore, the NDRB determined that the reason for the Applicant’s discharge shall cha nge to SECRETARIAL AUTHORITY.

Equity - After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety in the discharge action and that relief, as requested by the Applicant, was appropriate. Particular circumstances of interest to the NDRB was the credible service of the Applicant, his volunteerism to transfer to active duty for a four - year tour of duty, and the evidence submitted by the Applicant addressing the veracity of the charges and lack of justification for being stopped, which led to the separation action, coupled with his evaluations of record. By a vote of 5-0, the NDRB determined that the characterization of service at discharge shall change to H ONORABLE to reflect the overall trait average t he Applicant received and that the narrative reason for the discharge shall change to SECRETARIAL AUTHORITY.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the discharge process, and the evidence provided by the Applicant, the NDRB determined that the discharge was improper. Therefore, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .

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 | ND1001654

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