Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100039

Original file (ND1100039.rtf) Auto-classification: Denied

ex-IT2, USN

Current Discharge and Applicant’s Request

Application Received: 20101005

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)        19850325 - 19860210
         USNR (DEP)        19860513 - 19860517      Active:          19860518 - 19900531
         ( SELRES ) 19960601 - 19980115                      19900601 - 19960531

Period of Service Under Review:
Date of Current Enlistment: 19980116 (USNR)      Age at Current Enlistment:
Period of E nlistment : 19990301 - Ordered to Active Duty ( Voluntary Active Duty for Training (ADT) )
Date of Discharge: 20001228      Highest Rank/Rate: IT2
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 13 D a y ( s )
         Active   Y ear( s ) M onth( s ) 28 D a y ( s )

Education Level:        AFQT: 57
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :     Retention Warning Counseling :

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: “ SEA SERVICE DEPLOYMENT RIBBON (2), MERITORIOUS UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL ”
“ 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:                  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), Change 29, effective 11 July 2000 until
21 August 2002, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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)(b), 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

Decisional issues : The Applicant seeks an upgrade in his characterization of service at discharge to Honorable, contending that his discharge was unjust and discriminatory due to his belief that the command found out he was homosexual during the discharge process.

Decision

Date: 20 1 20112 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 NDRB 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 indentified one decisional issue for the NDRB’s consideration - inequity ; additionally, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant completed approximately 10 years of honorable active duty service and was assigned to the U.S . Nav y Reserve component when he accepted Active Duty for Training (ADT) orders , bringing him back on a period of active duty service with the Nav y Reserve Force. During this period of active duty service, the Applicant ’ s service record reflects no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no judicial or non-judicial proceedings . The Applicant’s military service record does not contain a copy of the separation proceedings. However, in order to warrant separ ation in lieu of trial by court- martial, the Applicant must request separation - in writing - for the good of the service in order to escape charges that have been preferred against the Applicant for referr al to trial by a Special Court-Martial or above. This request for separation contain s certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In the request for administrative separation , the Applicant must clearly affirm that his rights were explained to him - thoroughly - to include his right to consult with qualified counsel. Furthermore, the Applicant must admit his guilt to the charges as preferred against him and further certify that he has a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions. The respondent must also acknowledge that, if discharged with an OTH, it may deprive him of virtually all v eterans ’ benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered, or the character of discharge received, may have a bearing.

(Decisional Issues) ( ) . The Applicant seeks an upgrade in his characterization of service at discharge to Honorable, contending that his discharge was unjust and discriminatory due to his belief that the command may have found out that he was homosexual during the discharge process. 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. The Applicant provided no documentation to support his contentions or to rebut the NDRB’s presumption of regularity. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, the statement submitted by the Applicant, and the circumstances unique to this case.

Propriety - In the absence of the Applicant’s separation package, the NDRB presumed regularity in the conduct of governmental affairs. The Applicant’s DD Form 214 documents the narrative reason for separation as “In lieu of Trial by Court - Martial” with a corresponding Separation Code of KFS - “separation in lieu of trial by court - martial (SILT) .” The Applicant ’ s personal statement to the NDRB confirms he signed paperwork to e ffect an administrative discharge while on ADT orders. The command accepted the Applicant’s request; as such, the NDRB presumed that the Applicant was separated properly from the Service in accordance with chapter 1910-106 and 1910-230 of the Naval Military Personnel Manual (MILPERSMAN). Accordingly, relief based on propriety is not warranted.

Equity - Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline . The Applicant’s command determined that some purported misconduct on the part of the Applicant was detrimental to the good order and discipline of the command and brought discredit upon the service; as such, they determined that the alleged misconduct warranted punitive action via trial by court - martial. Facing the punitive acti ons of a court- martial, the Applicant requested administrative discharge. T o attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that the characterization of service would likely be Under Other Than Honorable Conditions. Based on the documentation of record, the NDRB determined that Applicant requested administrative separation in lieu of trial by court - martial - a discharge, which by service standard, is characterized Under Other Than Honorable Conditions and is administrative in nature .

Characterization of service at discharge is based on recognition of a Sailor’s performance and conduct . When the quality of a member’s service has met the standards of accept able conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge, however, is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant was pending re ferral of charges for trial by S pecial or G eneral C ourt -M artial. As such, t he NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect an act or omission, which was a significant departure from the conduct expected of a service member . Accordingly, the awarded characterization of service upon discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Furthermore, t he NDRB found the Applicant’s contention that the characterization of his service was related to his sexual preference to be without merit. The NDRB determined that the Applicant’s characterization of service at discharge , as issued, was appropriate; an upgrade would be inappropriate. Accordingly, relief is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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

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NAVY | DRB | 2011_Navy | ND1100039

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