Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100350

Original file (ND1100350.rtf) Auto-classification: Denied

ex-AOAR, USN

Current Discharge and Applicant’s Request

Application Received: 20101122

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF SERIOUS OFFENSE]

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19911113 - 19920525     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920526     Age at Enlistment:
Period of E nlistment : Years 18 MONTHS Extension
Date of Discharge: 19960613      Highest Rank/Rate: AO3
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 3.3 ( 5 )        OTA: 3.35
Awards and Decorations ( per DD 214):

NJP :     SPCM:    CC:      Retention Warning Counseling:

S CM :
- 19960316 :      Article ( Absence without leave )
         Article (Failed to obey order or regulations, 2 specifications )
         Article (False official statements)
         Article ( Wrongful use, possession, etc., of controlled substances )
         Article ( Larceny and wrongful appropriation )
         Sentence: (19960316 - 19960406, 22 days)

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 - 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 , , , and .

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

Applicant’s Issues

1. The Applicant seeks an upgrade for service benefits.
2. The Applicant contends he warrants an upgrade base d on his in-service conduct.
3. The Applicant contends his discharge is inequitable , because he did not have a positive drug test.
4. The Applicant believes he deserve s an upgrade , because several of the summary court-martial charges were dis approved .
5. The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 203 26 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the UCMJ: Article 86 ( Absence without leave ) , Article 92 ( Failed to obey order or regulations , 2 specifications ), Article 107 ( False official statement s ), Article 112a ( Wrongful use, possession, etc., of controlled substances ), and Article 121 ( Larceny and wrongful appropriation ) . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel but waived rights to submit a written statement and r equest an administrative board.

: (Nondecisional) The Applicant seeks an upgrade for 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.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade base d on his in-service conduct. The Applicant states his character is demonstrated by his top of the class performance in Boot Camp and “A” school, as well as his promotion to Petty Officer Third Class and a Good Conduct Medal. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because he did not have a positive drug test. Pursuant to SECNAVINST 5300.28D, a drug abuser is defined as the illegal or wrongful use, possession of controlled substances or attempts to commit drug offenses. The Applicant’s record reflected , and the Applicant confirmed at the personal appearance hearing , that an illegal substance was found in his possession. The illegal possession of a controlled substance serve d a s the basis for the Article 112a violation. Based on the Article 112a violation committed by the Applicant, processing for administrative separation is mandatory. Relief denied.

4 : (Decisional) ( ) . The Applicant believes he deserve s an upgrade , because several of the summary court-martial charges were disapproved. Although Specification 1 of Charge II , Specification 1 of Charge III, Specification 2 of Charge IV, and Charge VI and its Specification were disapproved by t he Force Judge Advocate, the remaining charges and sen tence w ere found to be legal within the limits prescribed by the law. The sentence was found to be adequate given the remaining charges and specifications with which the Applicant was found guilty. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

5 : (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. The NDRB considers 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. The Applicant provided certificate of ordination, certification from the State of California of the Articles of Incorporation of Calvary Chapel Skyline, I nc. , a copy of a web page listing the Applicant as the Pastor of Calvary Chapel Skyline, a thank you letter from Vice President Ch e ney, letter of appreciation from the Command Chaplain, Naval Base Ventura County, a n a cademic transcript from Liberty University where Applicant is enrolled, and several letters of support from his congregation. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration his testimony, and the testimony of his witness, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service had been honest and faithful but significant negative aspects of his conduct or performance outweighed positive aspects of his military record . Therefore, b y majority rule (a vote of 4 for GEN and 1 for HON) , the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), and by majority vote (4 for N o C hange and 1 for S ecretarial A uthority) not to change the na rrative reason for separation. Partial r elief warranted.

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 the discharge was proper and equitable at the time of the discharge. However, based on the facts and circumstances unique to this case and after considering the Applicant ’ s post-service conduct in conjunction with his in-service performance and conduct prior to the incident that resulted in his discharge, the Board determined that the Applicant ’ s misconduct was an aberration and not indicative of his overall character and that some relief was warranted . Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

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 | ND1100350

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