Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100656

Original file (ND1100656.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20110113

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)        20070104 - 20070128     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090803      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 6 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.34

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20090312 :      Article (Absence without leave , failed to go to appointed place of duty, 20090206 )
         Article (Failure to obey order or regulation, 3 specifications )
         Specifications 1-2 : Failing to cut his hair , 20081201-20090128
         Specification 3 : Failing to properly check in from leave , 20090121
         Article (False official statement, 2 specifications , 20090129 and 20090206 )
         Article ( C heck, worthless, making and uttering by dishonorably failing to maintain funds , 20081215 )
         [Extracted from CO’s L e t te r d a t e d 20100816 , and NAVPERS 1626/7 Report and Disposition of Offenses ]
         Awarded : (to E-2) FOP RESTR EPD Susp ended: (suspend 6 months)

- 20090727 :      Article (Absence without leave , 2 specifications )
                  Specification 1: F ailed to go to appointed place of duty at 0730, 20090705
                  Specification 2: F ailed to go to appointed place of duty at 0730, 20090719
         Article (False or unauthorized pass offenses , sick in quarters chit, 20090617 )
         Awarded: (to E-2) Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20090312 :       For NJP on 20 0 90312 for violation of the UCMJ A rticles 86 ( A bsence without leave), 92 ( F ailure to obey a lawful order , 3 specifications ) , 107 ( F alse official statement , 2 specifications ) , and 134 ( C heck, worthless by dishonorably failing to maintain funds) .

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 20 May 2008 until 9 November 2009, 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. Applicant seeks a discharge upgrade to obtain veteran benefits.

Decision

Date: 20 1 2 0315 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 did not identify any decisional issues for the Board ’s consideration . However, the Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 3 specifications: F ailed to go to appointed place of duty at 0700 , 6 Feb 2009 ; 0730, 5 Jul 2009; and 0730, 19 Jul 2009) , Article 92 ( Failure to obey an order or regulation , 3 specifications: Failed to cut his hair in violation of a verbal order by an HMCM and in violation of NAVPERS 15665I , on diverse occasions between 1 Dec 2008 and 28 Jan 2009) , Article 107 ( False official statement, 2 specifications: stated to a First Class Petty Officer , “I checked out on leave but forgot to check back in from leave” or words to that effect, 29 Jan 2009; and stated to a First Class Petty Officer, “My class got out early today” or words to that effect, 6 Feb 2009 ) , and Article 134 ( General Article, 2 specifications: Check, worthless, making and uttering, a personal check for $255 to a Third Class Petty Officer in payment of a debt and failed to maintain sufficient funds in the bank for payment of such check, 15 Dec 2008; and False or unauthorized pass offenses, altered sick - in - quarters chit to read 48 hours versus the originally issued 24 hours, 17 Jun 2009 ) . Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure on 28 Jul 2009 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. Chain of command comments located within the Applicant’s record included the following: “(The Applicant) has been a problem Sailor since the day he came onboard NAB Coronado. He has shown a constant pattern of irresponsible behavior, he constantly shows the inability to maintain proper grooming standards and adhere to the Navy Uniform Regulations and core values. He is constantly late to his appointed duties, fails to report of his whereabouts on a daily basis, and has altered medical documentation on numerous occasions. He has not made an improvement from May 2009 to present. Recommended for Captain’s Mast and administrative discharge due to being unable to perform his normal military duties . ” The Applicant was separated from the Navy on 3 Aug 2009 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally, t he NDRB has no authority to upgrade a discharge for the purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

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 administrative separation p rocess, the Board found The Applicant met the requirements for separation for a Pattern of Misconduct with his NJP - Page 13 retention warning - NJP. 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 | ND1100656

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