Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1002289

Original file (ND1002289.rtf) Auto-classification: Denied

ex-ITSN, USN

Current Discharge and Applicant’s Request

Application Received: 20100922

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)        20060509 - 20061203     Active:

Period of Service Under Review:
Date of Current Enlistment: 20061204     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091211      Highest Rank/Rate: IT3
Length of Service : Y ear s M onth s 06 D a ys
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.46

Awards and Decorations ( per DD 214):      GWOTSM MUC NDSM NAVY”E ”

Periods of UA /C ONF : SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NFIR

NJP : 2

- 20071118 :      NFIR [Extracted from NAVPERS 1070/604]

- 20091009:      Article 86 (Absence without leave)
         Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer or petty officer)
         Article 134 (General Article)
         Awarded: RIR BW 3 days Suspended: NONE

SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NFIR

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized, should read: “GLOBAL WAR ON TERRORISM SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, NAVY “E” RIBBON, CERTIFICATE OF COMMENDATION , ENLISTED SURFACE WARFARE SPECIALIST ”
“ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 29, effective 10 November 2009 until Present, Article 1910-140, SEPARATION 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 wants his discharge upgraded so he can reenlist in the military.
2.       The Applicant seeks an upgrade so he can receive the GI Bill to further his education .
3.       The Applicant contends that personal problems were contributing factors in his misconduct.
4.       The Applicant believes his post-service conduct, as evidenced by his character references and his efforts to become an Emergency Medical Technician, warrant consideration for an upgrade to Honorable.
5.        The Applicant contends his discharge was improper , because his command did not give him any support upon return from his assignment as an I ndividual A ugment ee .
6.       The Applicant contends his discharge was inequitable due to inadequate legal action.

Decision

Date: 20 1 2 0119             Location: Washington D.C .        R epresentation : none

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 two non - judicial punishment s (NJP s ) for violation s of the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without leave , 1 specification ), Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer , or petty officer , 1 specification ), and Article 134 (General Article , 1 specification ). Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived his rights to consult with a qualified counsel and sub mit a written statement . However, the Applicant’s DD Form 214 has a separation code of HKA , which indicates he waived his right to an administrative separation board.

: (Non - decisional) The Applicant wants his discharge upgraded so he can reenlist in the military. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Neither a less than fully honorable discharge nor an unfavorable Reentry (RE) code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Non-decisional) The Applicant seeks an upgrade so he can receive the GI Bill to further his education . The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of making a former service member eligible to receive the GI Bill or enhancing educational opportunities. Regulations limit the Board’s review to a determination of the propriet y and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that personal problems were contributing factors in his misconduct . The NDRB recognizes that serving in the Navy is challenging. However, most members of the Navy serve honorably and, therefore, earn their H onorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure undeserving Sailors receive no higher characterization than is due. Although the Applicant sought and received counseling to help with his emotional distress, the NDRB concluded that neither his personal problems nor his efforts to get assistance mitigated his misconduct . The Board determined the Applicant’s discharge was proper and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant believes his post-service conduct, as evidenced by his character references and his efforts to become an Emergency Medical Technician, warrant consideration for an upgrade to Honorable. 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. He could have provided 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.

Issue 5 : (Decisional) ( ) . The Applicant contends his discharge was improper , because his command did not give him any support upon return from his assignment as an I ndividual A ugment ee . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The NDRB did not have the Applicant’s medical record and there was no evidence in the Applicant’s service record indicating that he was not given proper support. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. The NDRB found the Applicant’s discharge was proper and equitable. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to inadequate legal action. There was no evidence in the record, nor did the Applicant produce any evidence, to support his contention that any legal action required in his case was inadequate or inequitable. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Therefore, the NDRB concluded that whatever legal action or legal representation that was necessary was provided and was adequate . 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.

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 | ND1002289

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