Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100349

Original file (ND1100349.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20101117

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)        20010316 - 20010808     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010809     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040506 (in absentia)        Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 21 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.25
Awards and Decorations ( per DD 214):

Period of C ONF :         Pre-Trial 200404 16 -200 4 04 20

Lost time per DD214:     UA 200206xx-20020827               UA 20040116-20040218
UA 20040409-20040412               UA 2004042 3 -20040 425
NJP :

- 20040116 :      Article (Insubordinate conduct , disobeyed a Chief Petty Officer)
         Article (Provoking speech or gestures)
         Awarded : (to E- 2 ) Susp ended:
SCM:

- 2004021 9 :       Art icle (Wrongful use of a controlled substance, Methamphetamine , o/o 20031229 )
         Article 86 (Unauthorized absence o/o 200 2 06 xx (specific day NFIR ) until 2027, 200 2 0827)
         Article 87 (Missing ship movement , 2 specifications )
         Specification 1: 20040202
         Specification 2: 20040210
         Article 134 (General A rticle, 2 specifications )
         Specification 1: Breaking restriction o/o 1600, 20040116
         Specification 2: Fail ed to provide a urine sample on or about 20040217
         Sentence : CONF (30 days) RIR (to E-1)

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:

         “ 20040116-20040218; 20040423-20040425; 20040504-20040505 ”

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), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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

1.        Applicant seeks a discharge upgrade to obtain veterans benefits.
2.       Applicant contends stress due to his brother being killed mitigates his misconduct.
3.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 02 16             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 i dentif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and proprie ty. The Applicant’s record of service did reflect one nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a petty officer, disobeyed a Chief Petty Officer) and Article 117 ( Provoking speech or gestures ) . The record also reflected summary court-martial for of the UCMJ: Article 86 ( Absence without leave , an unspecified day in Jun 2002 to 2027 on 27 Aug 2002 ) , Article 87 (Missing ship movement, 2 specifications: 2 Feb and 10 Feb 2004), and Article 134 (General Article, 2 specifications: Breaking restriction, o/o 1600, 16 Jan 2004 and failed to provide a urine sample, 17 Feb 2004). The record also indicated the Applicant admitted to using marijuana 4 times prior to entering the Navy. Based on the serious and repeated offenses committed by the Applicant, he was placed into pretrial confinement on 16 Apr 2004, and his command referred him for trial by S pecial C ourt- M artial due to the Applicant’s methamphetamine use (5 Jan and 24 M ar 2004) and UA misconduct (0700-1328, 16 Apr 2004 and 9-12 Apr 2004).

On 20 Apr 2004, the Applicant , after consultation with a qualified counsel, submitted a request for separation in lieu of trial by court - martial (SILT). He stated , “I fully understand the elements of the offenses with which I am charged, and I hereby voluntarily submit this request free from any duress or promises of any kind for separation in lieu of trial by court-martial. I have consulted with counsel. I admit I am guilty of violating Articles 86 (UA) and 112a (Wrongful use of a controlled substance) of the UCMJ. I understand that if my discharge is under other than honorable conditions, it may deprive me of virtually all veteran’s benefits based upon my current period of active service. I also understand that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing. ” On 5 May 2004, the Commander, Navy Region Southwest approved the Applicant’s request for SILT and directed that he be discharged as soon as practicable. His comments included “Afte r due and careful evaluation, I have determined your request for discharge, under other than honorable conditions, should be granted. Your performance and conduct do not warrant a more favorable characterization of discharge . ”

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veterans 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.

: (Decisional) ( ) . The Applicant contends stress due to his brother being killed mitigates his misconduct. The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in

the U.S. Navy is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. Moreover, in reviewing the Applicant’s record, the Board noted that his misconduct seemed to be resultant of other than personal stress. Excerpts from the Applicant’s Evaluation and C ounseling Reports include the following remarks : ( 31 Oct 2001-15 Jul 2002 ) “ As he matures, he should develop a greater sense of personal responsibility to ensure his timely arrival to assigned posts ”; ( 16 Jul 2002-10 Nov 2002 ) “ This evaluation submitted on the occasion of (the Applicant’s) inter-command transfer to Supply Department and loss of security clearance. (The Applicant’s) performance of his duties has been substandard. He has been derelict in his duties while standing watch in Princeton’s Combat Information Center and has failed to obey the lawful orders of his superiors. His attitude and demeanor were detrimental to the good order and discipline of the Division and Operations Department. (The Applicant) has significant problems fulfilling his duties as an OS within the fast paced, high stress environment of CIC. He has been given a second chance within the command and is now serving with S-3 Division . ” After careful consideration of all the available evidence and the circumstances particular to the Applicant’s case, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The Applicant in his letter to the Board stated he was attending school full time in pursuit of a bachelor ’s degree, is employed, and volunteers within his community. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . 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 an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 the separation in lieu of trial 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 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 | 2011_Navy | ND1100349

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