Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100730

Original file (ND1100730.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20110125

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)        20001129 - 20001213     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001214     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041115      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 2.6 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.66

Awards and Decorations ( per DD 214):

NJP :

- 20030124 :       Article (Unauthorized absence from unit)
         Awarded : Susp ended:

S CM :    CC:

SPCM:

- 20031105 :       Art icle (Dereliction of duty)
         Article 112a (Wrongful use of marijuana)
         Sentence : (20031105 - 20031129, 24 days)
         CA: The sentence is approved and, except for that part of the sentence extending to a B ad C onduct D ischarge, will be executed.

Retention Warning Counseling :

- 20010326 :       For failure to disclose your pre-service civil convictions/involvement. On October 2000, in Hamilton, Ohio, you were charged with receiving stolen property and theft. You were sentenced to six (6) months in jail which was suspended and fined $250.00 plus court cost. You paid a total of $846.00. On the charge of theft, you also had to pay restitution in the amount of $300.00. You have currently paid $1000.00 toward restitution and have set up an allotment in the amount of $300.00 monthly towards the balance. The information concerning the above disclosure was provided by your voluntary statement on 20010309. Be advised that if the information provided is determined to be false, this P age 13 may be considered void.

- 20030124 :       For appearing before the Commanding Officer on 20030124 for violation of UCMJ, Article 86, U nauthorized absence from unit.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective 9 September 2004 until
18 September 2005, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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)(a), 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.        The Applicant contends personal and medical issues mitigate his misconduct.
2.       Post-service.
Decision

Date : 2012 0416             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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( , ), and for of the UCMJ: Article ( , ) and Article ( , : marijuana ) . The Applicant a pre-service drug waiver for using cocaine prior to entering the Navy. Based on the Applicant’s convict ion at S pecial C ourt- M artial, and following appellant review, he was discharged with a Bad Conduct Discharge .

: (Decisional) ( ) . The Applicant contends personal and medical issues mitigate his misconduct. The Applicant submitted medical and other documentation that showed he was having ongoing medical problems that medical officers were unable to quickly identify and treat. The Applicant also submitted documentation establishing his marriage and family situation at the time of his misconduct. After carefully considering the record, as well as the evidence unique to this case and sworn testimony submitted by the Applicant, the NDRB determined he was facing numerous, complicated issues that mitigate his misconduct. The Applicant suffered from significant joint , chest , and back pain that was not responsive to prescribed medications and underwent numerous tests and examinations, but his condition did not improve. Concurrently, he and his wife were having significant and stressful marriage difficulties. These circumstances caused the Applicant to become significantly depressed and spira led into difficulties at work. The record showed the Applicant’s performance to be above average prior to these events. Additionally, the record shows the Applicant repeatedly sought assistance through appropriate channels to deal with his issues. The NDRB found the Applicant’s circumstances to be serious enough to mitigate his misconduct of record. Therefore, the characterization of service will change to General (Under Honorable Conditions) with no change to the narrative reason for separation. Relief warranted.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review . The Applicant submitted numerous documents in support of a post-service conduct review. These included proof of pursuit of a bachelor’s degree as well as technical training, steady employment with excellent employer endorsements, completion of substance abuse treatment and significant involvement in Alcoholics Anonymous, extensive work as a family and substance abuse counselor, and m arriage and birth certificates. The NDRB found the Applicant’s post-service conduct to be noteworthy. The NDRB found the Applicant’s in - service mis conduct to be an aberration and not indicative of his overall character. Therefore, the characterization of service will change to General (Under Honorable Conditions) with no change to the na rrative reason for separation. Relief granted. Full relief to Honorable was not granted, because the Applicant did commit some misconduct during his service and should be held accountable for that misconduct.

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 .

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 | ND1100730

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