Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101263

Original file (ND1101263.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 1920.6C

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

Summary of Service
Prior Service:
Inactive: USN (ROTC)     19960921 - 20010 521     Active:

Period of Service Under Review:
Date of Appointment : 2001 0522     Age: 24
Years Contracted : Indefinite
Date of Discharge: 20100430       Highest Rank : L T
Length of Service: 08 Years 1 1 Months 09 D ays
Education Level: NFIR     AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      AM NMCCM NDSM

Periods of UA /C ONF :

NJP : 1

- 20081002 :      [Date extracted from Commander’s letter dated 20090113 (supporting documents) .]
         Awarded: Punitive letter of Reprimand Suspended: NFIR

S CM : NON E                SPCM: NONE                 Retention Warning Counseling : NONE

C ivilian C harges : 2

         - 20070729:      Charge: Drunken or reckless operation of a vehicle

         - 20081002:      Charge: Drunken or reckless operation of a vehicle Pre-trial diversion program

Administrative Corrections to the Applicant’s DD 214

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

         Block 12a, Date Entered AD This Period, should read: “01 JUN 24”
         Block 12c, NET Active Service This Period, should read: “08 10 07”
         Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “AIR MEDAL, NAVY AND MARINE CORPS COMMENDATION MEDAL, NATIONAL DEFENSE SERVICE MEDAL , LETTER OF APPRECIATION ”
         Block 25, Separation Authority, should read: “SECNAVINST 1920.6C”

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until PRESENT 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 . 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 he was never convicted of a crime; therefore, his narrative reason for separation is incorrect.
2.      The Applicant contends his eight years of honorable service, as evidenced by his many accolades and accomplishments , is worthy of upgradi ng his discharge to Honorable.
Decision

Date: 20 1 2 0621             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 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 record of service indicates he received one non-judicial punishment (NJP) for violation of the UCMJ . However, details surrounding the NJP were not found in his service record. His record of service also included two civilian charges for drivin g under the influence of alcohol; the first one occurred on 29 J une 2007 and the second one on 2 October 2008. On 13 January 2 009, the Applicant was notified of administrative s how c ause proceedings and required to produce sufficient evidence for retention in the Navy . He was not selected for retention.

: (Decisional) ( ) . The Applicant contends he was never convicted of a crime ; therefore, his narrative reason for separation is incorrect . The Applicant’s record of service includes two civilian charges for driving under the influence of alcohol; the first one occurred on 29 June 2007 and the second one on 2 October 2008. No documentation was found in the Applicant’s service record explaining how the first charge was disposed . With regards to the second drunken driving charge, which occurred on 2 October 2008, documentation found in his service record along with information provided by the Applicant suggests that, while civilian charges were still pending, his command adjudicated the second drunken driving charge at NJP proceedings and processed him for administrative separation after he failed to show cause for retention. On 12 August 2010, after the Applicant had been discharged from the Navy , as evidenced by court documentation provided by the Applicant, the drunken driving charge of 2 October 2008 was dismissed. Th us , the Applicant was never convicted of that charge . Considering the first drunken driving charge occurred almost 3 years (34 months) prior to his discharge, and that the Applicant was never convicted of the second charge, by a vote of 3 to 2 , the NDRB determined that relief in the form of a change to the narrative reason for separation is warranted. Relief granted.

: (Decisional) ( ) . The Applicant contends his eight years of honorable service, as evidenced by his many accolades and accomplishments , is worthy of upgrading his discharge. D espite a service member’s prior record of service, some serious offenses warrant separation from the Navy to maintain proper order and discipline. On two separate occasions, civilian authorities charged the Applicant with drunken or reckless operation of a vehicle, which is a violation of UCMJ A rticle 111. Driving under the influence of alcohol is such an offense and can result in an unfavorable characterization of discharge, or at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Rather that pursue a punitive discharge , his command opted instead for the more lenient administrative discharge after affording the Applicant an opportunity to show cause for retention. The lack of a conviction does not mean the Applicant did not commit the act, and the dismissal of charges is not the same as a not guilty finding. A p reponderance of the evidence a s indicated by his participation in a pretrial diversion program and his being awarded NJP suggests that he did commit the misconduct. The refore, the NDRB concluded that separation was warranted and the assigned characterization of service was equitable. 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 the discharge was proper and equitable. However, considering circumstances unique to this case , the awarded characterization of service shall but the narrative reason for separation shall change to SECRETARIAL AUTHORITY. The Applicant remains eligible for a personal appearance hearing for 15 years from the date of discharge. The Applicant is directed to the Addendum .

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 | ND1101263

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