Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101262

Original file (ND1101262.rtf) Auto-classification: Denied

ex-LT, USN

Current Discharge and Applicant’s Request

Application Received: 20110419

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6B

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

Summary of Service

Prior Service:
Inactive: USN ( OCS )      19990416 - 20020511     Active:

Period of Service Under Review:
Date of Appointment : 20020512     Age:
Years Contracted : Indefinite
Date of Discharge: 20050831       Highest Rank : LT
Length of Service: 03 Years 03 Months 20 D ays
Education Level: NFIR     AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      NDSM GWOTSM

Periods of UA /C ONF :

NJP : 1

- NFIR : Specifics NFIR [Extracted from Evaluation Report dated 20050831]
         Awarded: LOR Suspended: NONE

S CM : NONE                SPCM: NONE       C C : NONE

Retention Warning Counseling: 1

- NFIR : For treating an ineligible beneficiary while on duty [Extracted from Evaluation Report dated 20050831]

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ IN LIEU OF TRIAL BY COURT-MARTIAL ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6 B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 , establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

D . 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 his record of honorable service , as evidenced by the Letter of Commendation he received, passing a ll physical fitness requirements, and acting as a d epartment head, is worthy of consideration.
2.       The Applicant contends the prosecuting attorney strong - armed his attorney into convincing him to resign and threatened him with interfering with his divorce trial.
3. The Applicant contends his command treated him in a rather disconcerting manner, and he was forced to resign under this condition.
Decision

Date: 20 1 2 0621             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 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 Applicant’s service record contained very little documentation pertaining to his discharge. Therefore, the Board presumed regularity in the conduct of government affairs on most matters pertaining to his discharge. Based on the Applicant’s Fitness Report and Evaluation Record for the period of 20050104 to 20050831, he received one NAVPERS 1070/613 (Page 13) warning and one non - judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ ) . T he counseling warning was for treating an ineligible beneficiary . T he violation ( s ) included in the NJP , however, could not be determined. The NDRB found no documentation in the Applicant’s service record reflecting the charge ( s ) that were pending court-martial. A ccording to the Applicant, however, h is command threatened to charge him with conspiracy against the U. S. Government , which is a violation of Article 81 of the UCMJ . Rather than face trial by court-martial, he requested to be separat ed from the Navy . To receive approval for separation in lieu of trial by court-martial, a service member must certif y that his counsel fully explained the elements of the offense(s) for which he was charged, he acknowledged he was guilty of the offense(s), he completely understood the negative consequences of his actions, and he acknowledged that the characterization of service could be Under Other Than Honorable Conditions. His command approved the request for separation in lieu of trial by court-martial and administratively processed him for separation.

: (Decisional) ( ) . The Applicant contends his record of honorable service, as evidenced by the Letter of Commendation he received, passing all physical fitness requirements, and acting as department head, is worthy of consideration for upgrading his discharge to Honorable. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. The NDRB found no information in the Applicant’s service record describing the offense(s) for which court-martial was being considered. However, according to the Applicant, his command threatened to charge him with co nspiracy against the government. However, rather than face trial by court-martial and the possibility of a punitive discharge and confinement, the Applicant requested separation in lieu of trial by court-martial. His command approved his request , choosing not to pursue a punitive discharge but opting f or the administrative discharge. The NDRB determined that relief based on th e Applicant’s record of service prior to the incident leading to his discharge is not warranted. It found the characterization of the Applicant ’ s discharge was equitable and is what is typically assigned for service members separated in lieu of trial by court-martial. Relief denied.

: (Decisional) ( ) . The Applicant contends the prosecuting attorney strong-armed his attorney into convincing him to resign . He resigned as advised by his attorney. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his counsel was strong-armed by the prosecuting attorney . The Applicant’s statement alone is not sufficient to overcome the government’s presumption of regularity in this case. Therefore, based on the presumption of regularity, the NDRB concluded the discharge was proper and equitable, and that relief based on this issue is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because his command treated him in a rather disconcerting manner, and he was forced to resign under this condition. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his command treated him unfairly and that such treatment led to his resignation. The Applicant’s statement alone is not sufficient to overcome the government’s presumption of regularity in this case. According to the Applicant, his attorney advised him to resign. He chose to take his attorneys advice even though he was not required to do so. The NDRB concluded that relief based on this issue is not warranted. 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 d ischarge 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | ND1101262

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