Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001763

Original file (ND1001763.rtf) Auto-classification: Denied

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20100707

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)        19990329 - 19990412     Active:

Period of Service Under Review:
Date of Current Enlistment: 19990413     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040628      Highest Rank/Rate: HA
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR
Awards and Decorations ( per DD 214):      NONE

NJP :
- 19990824 :      Article (Absent without leave - exact details of specification not found in record)
         Awarded: ORAL REPRIMAND Suspended:

SPCM:
- 20000615 :       Art icle 80 (A ttempt to steal $1,263.48, the property of the U.S. Government)
         Article (Unauthorized absence) , 7 specifications
         Specification 1: Unauthorized absence from 20000204 – 20000207, 3 days
         Specification 2: Unauthorized absence from 20000221 – 20000223, 2 days
         Specification 3: Unauthorized absence from 20000227 – 20000301, 4 days
         Specification 4: Failed to go at the prescribed to appointed place of duty for transportation
         Specification 5: Unauthorized absence from 20000319 – 20000322, 4 days
         Specification 6: Failed to go at the time prescribed to his appointed place of duty, to wit Ward 5 East
         duty muster
         Specification 7: Failed to go at the time prescribed to his appointed place of duty, to wit 0700 pre-trial
        confinement muster
         Article (Missing ship ’ s movement)
         Article (False official statement)
         Article (Larceny) , 2 specifications
         Specification 1: Wrongful appropriation of an ATM card
         Specification 2: Steal a value of $200.00, the property of the Navy Federal Credit Union
         Article ( Forgery ) , 4 specifications
         Specification 1: With intent to defraud, falsely make in its entirety the signature of a Chief
         Specification 2: With intent to defraud, falsely make in its entirety the signature the entitlement benefits
         would be paid in the form of Basic Allowance for Housing)
         Specification 3: With intent to defraud, falsely alter a certain writing, by wrongfully deleting his name
        from the 20000227 schedule
         Specification 4: With intent to defraud, falsely alter the military family health center light duty list, by
         wrongfully altering the assigned number of SIQ days from one to four
         Sentence : 6 months (20000331 – 20000828, 151 days)

C C :      SCM:

Retention Warning Counseling :

- 19990824 :       For unauthorized absence

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 in order to facilitate access to the Department of Veterans Affairs (VA) medical benefits and to facilitate opportunities for better employment.

2. Decisional issues : The Applicant seeks clemency in the form of an upgrade in his discharge characterization to General (Under Honorable Conditions), contending that he has matured since his misconduct and is responsible for a daughter now.

Decision

Date: 20 1 1 1020 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 as stated in a court-martial , are presumed by the NDRB , to be established facts. As such, the 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 documents entry into m ilitary service at age 1 8. He enlisted on a 4 -year enlistment contract with a twelve-month extension for guaranteed training as a Corpsman. The Applicant’s enlistment record reflects his entry into military service with out any wavier to enlistment and induction standards . The highest rank achieved by the Applicant during his enlistment was E- 2 / Hospitalman Apprentice .

The Applicant’s period of service under review documents one NAVPERS 1070/613 retention-counseling warning and one nonjudicial punishment for violation of Article 86 of the Uniform code of Military Justice - Absent without leave. Furthermore, the Applicant’s service record reflects a punitive conviction with punishment as adjudged by a S pecial C ourt - M artial on 15 June 200 0 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 80 (Attempts) , Article 86 ( Absent without leave , 7 specifications ) , Article 87 ( M issing ship ’ s movement) , Article 107 (False official statement) , Article 121 (Larceny - 2 specifications) , and Article 123 (F orgery , 4 specifications). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement (PTA), the Applicant agreed to request trial by military judge alone and agreed to plead guilty to the agreed upon charges while also including a signed, written stipulation to the facts as related to the charg es . In consideration, the convening authority agreed to withdraw the charges from tri a l by General Court - Martial. Given the facts of the case , the Applicant’s testimony of record , and his stipulation of facts in writing, the military judge awarded the Applicant a Bad Conduct Discharge, a reduction in grade to E-1, and confinement for a period of 6 months . The case was submitted for review with a single assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 23 December 2003 . Subsequently, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 18 June 2004 . The Applicant’s final discharge was effected on 28 June 2004 .

Besides his DD Form 293 , the Applicant provided no other documentation in support of his request.

Nondecisional issue – The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) in order to facilitate access to Department of Veterans Affairs (VA) Benefits (health and education) and to facilitate better opportunities for employment. 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. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue s : (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submi ssion of his request for review, contending that he has matured since his misconduct and is responsible for a daughter now. 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 documented misconduct includes a n extensive pattern of misconduct related to unauthorized absences , missing ship ’ s movement, larceny, and forgery to defraud the government. 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 ing Officer referred the violations of the UCMJ to trial by General Court - Martial ; an Article 32 investigating officer was appointed and the investigation was conducted . The charges were reduced to adjudicat ion at trial by Special Court - Martial in accordance with a sig n ed PTA . 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 6 months .

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably. While understood that 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. Chronic and deliberate unauthorized absence, coupled with larceny and forgery to defraud the government 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

Similar Decisions

USMC | DRB | 2010_Marine | MD1002044

Original file (MD1002044.rtf) Auto-classification: Denied

The Applicant’s service record documents that he completed the adjudicated period of confinement as awarded by the Special Court-Martial sentence. On 14 May 1996, the Applicant submitted a request for clemency to the Convening Authority; on 19 August, the Convening Authority acted on the request for clemency and reduced the sentence of confinement for six years to a period of four years. Having conducted a detailed review of both the records of trial by Special and by General Court-Martial...
USMC | DRB | 2010_Marine | MD1002320

Original file (MD1002320.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...
NAVY | DRB | 2011_Navy | ND1100708

Original file (ND1100708.rtf) Auto-classification: Denied

Given the facts of the case during the second Special Court-Martial, the Judgefound the Applicant guilty of the charge as specified and adjudged confinement for a period of 6 months and to be discharged from the Naval Service with a Bad Conduct Discharge. Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge. ” Additional Reviews : After a document review...
USMC | DRB | 2010_Marine | MD1002230

Original file (MD1002230.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: UNCHARACTERIZED OR GENERAL (UNDER HONORABLE CONDITIONS)Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20031219 - 20040801Active: Period of Service Under Review: Date of Current Enlistment: 20040802Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070125Highest Rank:Length of Service: Years Months24 DaysEducation Level: AFQT:59MOS: 0300Proficiency/Conduct Marks (# of...
NAVY | DRB | 2010_Navy | ND1001459

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

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. 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...
USMC | DRB | 2011_Marine | MD1100206

Original file (MD1100206.rtf) Auto-classification: Denied

The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) and for exceeding the Marine Corps height/weight standards. Issue 2: (Decisional) (Clemency/Equity)CLEMENCY NOT WARRANTED. ” 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...
NAVY | DRB | 2010_Navy | ND1002292

Original file (ND1002292.rtf) Auto-classification: Denied

The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions), contending his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career.The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case. Summary : After a thorough...
USMC | DRB | 2010_Marine | MD1001777

Original file (MD1001777.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. ” Additional Reviews : After...
NAVY | DRB | 2010_Navy | ND1001243

Original file (ND1001243.rtf) Auto-classification: Denied

Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 100 days. 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...
USMC | DRB | 2010_Marine | MD1001737

Original file (MD1001737.rtf) Auto-classification: Denied

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. 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...

Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001763

Similar Decisions