Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100828

Original file (ND1100828.rtf) Auto-classification: Denied

ex-PS2, USN

Current Discharge and Applicant’s Request

Application Received: 20110209

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)        20000113 - 20000227     Active: 20000228 - 20040929 HON
                                    USN 20040930 - 20090429 HON

Period of Service Under Review:
Date of Current Enlistment: 20090430     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100519      Highest Rank/Rate: PS2
Length of Service: Y ear s M onth s 20 D a ys
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 2.77

Awards and Decorations ( per DD 214):      NDSM SSDR (2) GCM (2) AFEM MUC NUC GWOTEM

Periods of UA /C ONF :

NJP :
- 20100304 :      Article 134 (Bigamy , 20090422 )
         Awarded: RIR (to E-4) FOP RESTR EPD Suspended: RIR FOP RESTR EPD (suspend 6 months)

S CM : NONE       SPCM: NONE        C C : NONE          Retention Warning Counseling : NONE

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000228 UNTIL 20090429 ”
         Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded, should read: “NATIONAL DEFENSE SERVICE MEDAL SEA SERVICE DEPLOYMENT RIBBON(2) GOOD CONDUCT MEDAL(2) ARMED FORCES EXPEDITIONARY MEDAL MERITORIOUS UNIT COMMENDATION NAVY UNIT COMMENDATION GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL ENLISTED SURFACE WARFARE SPECIALIST BREAST INSIGNIA”
         “ MISCONDUCT (SERIOUS OFFENSE) ”

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), Change 29, effective 10 November 2009 until 17 August 2011, 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 .

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

Applicant’s Issues

1 .       Applicant seeks a discharge upgrade to increase employment opportunities.
2 .       Applicant contends his discharge is inequitable , because it was based on an isolated incident in 10 years of service.

Decision

Date: 20 1 2 04 2 6             Location: Washington D.C .        R epresentation : NONE

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 identified one decisional issue for the Board’s consideration. The Applicant’s record of service contain ed one NAVPERS 1070/613 (Page 13) retention counseling warning during his first enlistment, on 3 June 2004, for fraudulent enlistment that resulted from the Commander, Navy Personnel Command directing that the Applicant be processed for administrative separation due to fraudulent enlistment (in failing to disclose criminal arrest record and adverse financial information). The Applicant was processed for separation, but the General Court - Martial Convening Authority elected to retain him in the Navy. The record also include d one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 134 ( General Article, Bigamy , o/o 22 Apr il 2009, wrongfully married a woman in Allendale County , South Carolina while married to another woman living in Memphis , Tennessee ). Based on the Bigamy offense committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure on 4 Mar ch 2 0 10 , the Applicant exercised his rights to consult with a qualified counsel and request an administrative separation board (Admin Board) . The A dmin B oard proceeding was held on 21 Mar ch 2010.

On 22 Mar 2010, the Applicant’s Defense Counsel submitted a Letter of Deficiency to the Commanding Officer, Naval Support Activity (NSA) Bahrain requesting the Applicant receive a General (Under Honorable Conditions) characterization of service. In the letter, the Defense Counsel contends the A dmin B oard disregarded the Applicant’s approximately 10 years of service (with no misconduct), his performance as evidenced by enlisted Evaluation Reports, and witness testimony and recommendations (from a Senior Chief Petty Officer, a First Class Petty Officer, and two civilian DOD employees) regarding the Applicant’s deserved characterization of service. On 28 Mar 2010, the Senior Member of the Admin Board forwarded the Board results to the convening authority as follows: (By 3-0 vote) a preponderance of the evidence supported the basis for separation - Misconduct (Serious Offense) due to violation of UCMJ Article 134, Bigamy; (By 3-0 vote) the Applicant should be separated; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge. On 1 1 Apr 2010, the Commander, NSA Bahrain submitted a Letter of Deficiency endorsement to the Commander, Navy Region Europe, Africa, Southwest Asia recommending that the Letter of Deficiency be disapproved. He stated , “After careful review of the circumstances surrounding the separation of (the Applicant), I concur with the findings of the Administrative Separation Board held on 21 Mar 2010 and find no deficiencies in the board proceedings. I considered all of the factors to include (the Applicant’s) family situation, his potential for future employment, lasting effects of an Other Than Honorable discharge and the recommendation of the administrative separation board. The board was fair and impartial and considered all of the relevant evidence in making their determination. (The Applicant’s) conduct was clearly outside Navy standards. I concur with the board’s findings . ” On 15 Apr 2010, he endorsed the Administrative Separation Board’s findings and recommendations, stating “(The Applicant) was found guilty at OIC’s NJP for Bigamy. His misconduct was detrimental to good order and discipline in the U.S. Navy and did not uphold the Navy’s Core values of Honor, Courage, and Commitment. Based upon the seriousness of this misconduct, (the Applicant) has no potential for further naval service. I strongly recommend that he be separated under Other Than Honorable Conditions . ” On 5 May 2010, the Separation Authority directed that the Applicant be administratively discharged as recommended by the Admin Board and his chain of command. The Applicant was separated from the Navy on 19 May 2010 with an Under Other Than Honorable Conditions discharge due to Misconduct (Serious Offense).

Issue 1 : (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities. 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 10 years of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment, although the Applicant did receive NJP for violation of UCMJ Article 134 (Bigamy). The characterization of service is a description of the total service provided during the member’s current enlistment . When the service of a member has been honest and faithful, it is appropriate to characterize that service as H onorable. However, an Under Other Than Honorable Conditions discharge is warranted is when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s service clearly reflected his violation of UCMJ Article 134 (Bigamy) , which constitutes the “commission of a serious offense , ” the discharge basis in this case. This specifi c violation is punishable by a B ad C onduct or D ishonorable D ischarge and up to 3 years of imprisonment if adjudicated at trial by courts-martial. Along with the facts and circumstances surrounding the Applicant’s Bigamy offense, the NDRB also considered the testimony presented during the administrative board hearing , which revealed insufficient funds checks written to the cash cage, PSD Bahrain , Navy Exchange, and NSA Bahrain totaling more than $4,000 . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service and falls short of what is required for an upgrade in the characterization of service. Accordingly, the NDRB found this issue did not provide a basis for which relief could be granted. 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 administrative separation 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 | ND1100828

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