Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1002255

Original file (ND1002255.rtf) Auto-classification: Denied

ex-EMFR, USN

Current Discharge and Applicant’s Request

Application Received: 20100622

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19920722 - 19930712     Active:

Period of Service Under Review:
Date of Current Enlistment: 19930713     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950815      Highest Rank/Rate: EMFN
Length of Service : Y ear ( s ) M onth ( s ) 3 D a y ( s )
Education Level:        AFQT: 59
Evaluation M arks:         Performance: 3.1 ( 3 )      Behavior: 3.1 ( 3 )        OTA: 3.07

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 19940225 :      Article ( Failed to go at the time prescribed to his appointed place of duty to wit, Building 26 Financial Counselor)
         Article (Disobey a lawful order from a commissioned officer)
         Article (Fail to maintain sufficient funds in account to pay debts)
         Awarded: Suspended:

- 19950512 :      Article (Insubordinate conduct toward a Petty Officer)
         Article (D ereliction in the performance of duties)
         Article (Making, drawing, or uttering check, draft or order without sufficient funds)
         Awarded: Suspended:

- 19950622 :      Article (Making, drawing, or uttering check, draft, or order without sufficient funds)
         Article (Disobey order or regulation)
         Awarded: Suspended:

- 19950723 :      Article (Dereliction of duty)
         Article (False official statement)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 19940302 :      For poor military performance, to wit: disobeying a lawful order

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY "E" RIBBON ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 contends his last evaluation was completed by his C ommanding Officer, not his Division Officer.
2 .       The Applicant contends he did not see his final evaluation, so he could not contest its findings.
3 .       The Applicant contends not all members of the administrative separation board signed the final report as ordered by the Commanding Officer , suggesting the discharge was improper.
4.       The Applicant contends his post-service conduct and achievements, as evidenced by the employment documentation and letter of reference he submitted as well as his statement referring to his family, college attendance , and business ownership warrants consideration for upgrading his disch arge.

Decision

Date: 20 1 2 0119             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 NAVPERS 1070/613 (Page 13) warning and non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized a bsence, 1 specification) , Article 91 ( Insubordinate conduct toward a petty officer, 1 specification), Article 92 ( two specifications of failure to obey order and two specifications of dereliction in the performance of duties), Article 107 (False official statement, 1 specification), Article 123 (Making, drawing, or uttering check, draft or order without sufficient funds, 2 specification s ) , and Article 134 (General Article , 1 specification of failure to maintain sufficient funds in an account to pay debts). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Non - decisional) The Appli cant contends his last evaluation was completed by the Commanding Officer, not the Division Officer, and that he did not see the final evaluation and therefore could not contest its findings. Regulations limit the NDRB’s review to the propriety and equity of the discharge, not the propriety and equity of the evaluation process . The NDRB determined that these issues did not affect the decision to discharge the Applicant nor did it affect the characterization of his service or narrative reason for separation. Concerns regarding th e propriety and accuracy of evaluations can be addressed to the Board for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) .

: (Decisional) ( ) . The Applicant contends not all members of the administrative separation board signed the final report as ordered by the Commanding Officer , suggesting impropriety in the discharge process. The NDRB conducted a thorough review of all documents in the Applicant’s service record and determined that the Applicant did not submit both pages of the Report of the Administrative Board. Although the senior member’s signature is missing from page one of the r eport, the senior member did sign page two of the document, which also states there were no dissenting members. The Applicant’s le gal counsel submitted a letter of deficiency to the C hief of Naval Personnel to review this very issue that t he Applicant presents to the NDRB. Although the Chief of Naval Personnel’s response is not in the Applicant’s service record, t he NDRB presumes regularity in that the Chief of Naval Personnel appropriately reviewed the letter of deficiency and found the missing signature not significant enough to warrant changing the character of service to Honorable or General (Under Honorable Conditions) , as the senior member’s signature was on the document, as well as on other documentation pertaining to the results of the hearing. The NDRB discerned no impropriety in the discharge process. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his post-service conduct and achievements, as evidenced by the employment documentation and letter of reference he submitted as well as his statement referring to his family, college attendance , and business ownership warrants consideration for upgrading his discharge. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The documentation the Applicant submitted along with the DD Form 293 was not sufficient to evaluate his post-service character and conduct. His efforts needed to have been more encompassing and supported by documentation . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Relief denied.

Summary: After a thorough review of the 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 remain . Since fifteen years from the date of the Applicant’s discharge have elapsed, he is not eligible for a personal appearance hearing with the NDRB. The Applicant may petition the Board for Correction of Naval Records for further review using DD Form 149.

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 | ND1002255

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