Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001766

Original file (ND1001766.rtf) Auto-classification: Denied

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20100707

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICER)

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       SECRETARIAL AUTHORITY

Summary of Service
Prior Service:
Inactive: USN R    200 80401 - 20080 404 ELS Active: 20080405 - 20080717 HON

Period of Service Under Review:
Date of Appointment : 20080 718     Age: 28
Years Contracted : Indefinite
Date of Discharge: 20091031       Highest Rank : ENS
Length of Service: 01 Year(s) 06 Month(s) 27 D ay(s)
Education Level:         AFQT: 51
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      NDSM

Periods of UA /C ONF :

NJP :

- 20081222 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Written admonition Suspended:

S CM :

SPCM:

C C :

- 20091014 :       Offense: Charge 1: DUI, Property Damaged (Amended to reckless driving) ; Guilty
Charge 2: D riving Under the Influence ; Nolle prosequi
Charge 3: Fail to use due care; Dismissed
Charge 4 : Driving in wrong lane or side ; Dismissed
        Sentence : DUI School Level I; 50 hours community service; License suspended for 6 months, all fines/costs are separate and apart from probation.

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “ SECNAVINST 1920.6C ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until PRESENT establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 contends his d ischarge was i nequitable, because it was based on pending civilian charges for driving under the i nfluence (DUI) property damage, failure to use due care, and driving on the wrong side of the road. All four of the charges that the separation was based on were either dropped or otherwise resolved without a conviction. If the command had waited for the allegations to be resolved in civilian court , they would have found that he was guilty of reckless driving.
2.       D emonstrated ability and leadership warrants consideration for upgrad e to Honorable .
3 .       Post-service conduct and achievements warrant consideration for upgrade to Honorable.

Decision

Date: 20 1 1 0822             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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included non-judicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel). The Applicant also received a civilian conviction for reckless driving. His record of service did not include any NAVPERS 1070/613 (Page 13) warnings or trials by court-martial. Based on the UCMJ offense committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends hid discharge was inequitable, because it was based on pending civilian charges for DUI, property damage, failure to use due care, and driving on the wrong side of the road. He further contends that all four of the charges that the separation was based on were either dropped or otherwise resolved without a conviction . If the command had waited for the allegations to be resolved in civilian court, it would have found that he was only guilty of reckless driving. Documentary evidence and testimony provided by the Applicant indicates he did receive NJP for a violation (Drunken or reckless operation of a vehicle) stemming from the same incident that was already pending adjudication by a civilian court. The civilian court amended the remaining DUI charge to the lesser charge of reckless driving and convicted him of that charge only. According to regulations, when a person has been tried in a state court, military charges shall not be referred to a court-martial or be the subject of NJP proceedings for the same act except in those unusual cases where trial by court-martial or the imposition of non-judicial punishment is considered essential in the interest of justice, discipline, and proper administration. In this case, although the Applicant had been formally charged in a civilian court, he had not yet been tried. Therefore, it was not improper for the command to impose NJP, nor was it improper for the command to process him for administrative separation before the case was adjudicated in a civilian court . Although the Board discerned no impropriety in the discharge process, it did conclude that the discharge was inequitable. Based on the facts and circumstances unique to this case, the Board determined that neither the imposition of NJP , nor separation from the Navy , was essential in the interest of justice, discipline, or proper administration. The Board further concluded that a dministrative separation was excessive and un warranted. Relief granted.

Issue s 2-3: Re lief was granted based on Issue 1 , t herefore, Issues 2 and 3 will not be addressed.

Summary: After a thorough review of the Applicant’s testimony and available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

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 | ND1001766

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