Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101026

Original file (ND1101026.rtf) Auto-classification: Denied

ex-ABFAA, USN

Current Discharge and Applicant’s Request

Application Received: 20110315

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)        20060314 - 20060717     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060718     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100615      Highest Rank/Rate: ABFAN
Length of Service: Y ear s M onth s 28 D a ys
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 2.9 ( 7 )      Behavior: 2.4 ( 7 )        OTA: 2.64
Awards and Decorations ( per DD 214):      NDSM GWOTSM GWOTEM SSDR (3) NAVY “ E ” (3)

Periods of UA /C ONF :

SCM: NONE         SPCM: NONE        CC: NONE

NJP : 3
- 20070508 :      Article 92 (Failure to obey order or regulation, 4 specifications )
         Awarded: RESET TIR FOP RESTR Suspended:

- 20100115:      Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 107 (False official statement)
         Article 128 (Assault)
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended: N o ne

- 20100301 :      Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 92 (Failure to obey order or regulation , 20100203 )
         Awarded : BW 3 days Susp ended:

Retention Warning Counseling : 1
- 20091228 :       For failure to provide adequate financial support to your dependents per MILPERSMAN 1754-030. After having been previously counseled on this deficiency, you wrongfully continu ed to n ot satisfy your financial obligation to your family .

Administrative Corrections to the Applicant’s DD 214
The NDRB note d an administrative error on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), NAVY “ E” RIBBON (3), OVERSEAS SERVICE RIBBON ”

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 .

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 s 91, 9 2 , 107, and 128 .

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

Applicant’s Issues

1.        Applicant contends he was wrongfully sent to Captain’s Mast.
2.       Applicant contends he warrants a discharge upgrade as he claims he was one month from satisfying his enlistment contract.

Decision

Date: 20 1 2 05 23             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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: UCMJ offense violation charge sheets, notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. T he Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and three nonjudicial punishments (NJPs ) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer, 2 specifications), Article 92 (Failure to obey an order or regulation, 5 specifications), Article 107 (False official statement), and Article 128 (Assault). B ased on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel and submit a written statement . The separation code HKQ on the Applicant ’s DD Form 214 indicates he waived his right to r equest an administrative separation board. The Applicant was separated from the Navy on 15 June 2010 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

Issues 1-2 : (Decisional) ( ) . The Applicant contends he was wrongfully sent to Captain’s Mast, and he warrants a discharge upgrade , claiming he was one month from satisfying his enlistment contract. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Although the Applicant’s service records are incomplete, the available documentation indicates a series of misconduct incidents during the Applicant’s enlistment that occurred between May 2007 and February 2010. These incidents resulted in the Applicant receiving one Page 13 retention warning, three NJPs , and his subsequent administrative separation from the Nav y . He had committed multiple serious offenses and warranted separation. The Applicant also contends that he was separated just one month prior to his end of active obligated service (EAOS) and therefore , warrants a discharge upgrade. The Board noted that the Applicant extended his enlistment contract (on 18 July 2006) to five years in order to participate in an enlistment bonus program. This extension of enlistment resulted in a new contractual EAOS date of 17 July 2011 , which means the Applicant was actually discharged more than 12 months before his EAOS . R egardless of the length of time served, a Sailor can be separated for mis conduct up to the day of EAOS. Per the Nav al Military Personnel Manual, w hen a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all members of the Naval Service, regardless of his grade and length of service, and f alls short of w hat is required for an upgrade. After careful consideration of all the available evidence, the NDRB determined that his discharge was proper , e quitable, and in accordance with the applicable orders and directives in effect at the time of his discharge. Relief denied.

Summary: After a thorough revi ew of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, 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 | ND1101026

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