Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100184

Original file (ND1100184.rtf) Auto-classification: Denied

ex-HA, USN

Current Discharge and Applicant’s Request

Application Received: 20101027

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)        20070222 - 20070415     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070416     Age at Enlistment: 19
Period of E nlistment : Years Extension
Date of Discharge: 20090901      Highest Rank/Rate: HN
Length of Service: Y ear s M onth s 16 D a ys
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 1.8 ( 4 )      Behavior: 1.8 ( 4 )        OTA: 2.21

Awards and Decorations ( per DD 214):      Pistol MM NDSM

Periods of UA /C ONF :

NJP : 2

- 20090127 :      Article 86 (Absence without leave , 2 specifications )
         Specification 1: UA, 0700-1320 , 20081117
         Specification 2: UA, 0700-1330 , 20081118
         Article 89 (Disrespect toward a superior commissioned officer)
         Article 92 (Failure to obey order or regulation, failed to obey order to report to a M aster C hief)
         Awarded: RIR FOP RESTR EPD Suspended: RIR RESTR EPD (Vacated 200907 27 )

- 20090727 :      Article 92 (Failure to obey order or regulation , failure to report for Extra Military Instruction )
         Awarded : RIR RESTR EPD Susp ended:

S CM : NONE

SPCM: NONE

C C : 2

- 20090715 :       Offense: Trespassing (after being forbidden to do so) ; Threatening to kill an officer,
         Sentence : CONF 12 months (suspended) Court Cost $83.00

- 20090804:      Offense: Exceeding the speed limit ; Reckless driving
         Sentence: CONF 180 days (suspended 160 days) Court Fine $300.00 Court Cost $162.00 Operator’s License Suspension 30 days

Retention Warning Counseling : 5

- 20090204 :       For absence without leave, disrespect toward a superior commissioned officer, failure to obey order or regulation, and false official statement

- 20090 423 :       For personal behavior and responsibilities - failed to muster via telephone

- 20090608 :       For unauthorized absence of approximately 4 hours and 40 minutes

- 20090610:      For u nauthorized absence of approximately 45 minutes

- 20090701:      For u nauthorized absence of approximately 1 hour and 40 minutes

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 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.        The Applicant seeks an upgrade for educational benefits.
2.       The Applicant contends that the medication he was on was responsible for his unauthorized absences.

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 discharg e 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 five NAVPERS 1070/613 (Page 13) warnings , two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ ): Article 86 (Absence without leave, 2 specifications ), Article 89 (Disrespect toward a superior commissioned officer) , and Article 92 (Failure to obey order or regulation, failed to report, 2 specifications) , and two Civilian Convictions for t respassing, t hreatening to kill an officer, e xceeding the speed limit, and reckless driving. Based on the last Article 92 violation, the Applicant’s command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Mar tial Convening Authority review .

: (Nondecisional) The Applicant seeks an upgrade for educational 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. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that the medication he was on was responsible for his unauthorized absences. The Applicant provided no documentation or evidence in support of his issue or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. The record reflects several serious violations of the UCMJ, as well as two civil convictions , including trespassing and threatening to kill an officer. The UCMJ violations could have resulted in confinement and a punitive discharge if adjudicated at special court-martial. The NDRB found the Applicant was extremely fortunate his command elected to be unusually lenient in pursuing administrative discharge considering the volume and serious nature of his misconduct. The NDRB determined the Applicant’s medications were in no way related to th e serious misconduct for which he was separated. An upgrade would be inappropriate. 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 . 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, Automatic Upgrades, 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 | ND1100184

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