Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101532

Original file (ND1101532.rtf) Auto-classification: Denied

ex-GSMFR, USN

Current Discharge and Applicant’s Request

Application Received: 20110607

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420 [COURT-MARTIAL]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19930330 - 19930607     Active:

Period of Service Under Review:
Date of Current Enlistment: 19930608     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970409      Highest Rank/Rate: GSMFN
Length of Service: Year(s) Month(s) 15 D ay(s)
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.6 ( 4 )      Behavior: 3.6 ( 4 )        OTA: 3.65

Awards and Decorations ( per DD 214):

NJP :

- 19940901 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    CC:

SPCM:

- 19960201 :      Article 86 ( Absence without leave 19951022-19951130, 39 days)
         Article (Absence without leave , 3 specifications )
         Specification 1: 0130-2200, 19951003
         Specification 2: 2200-0030, 19951010
         Specification 3: 0001-0740, 19951013
         Sentence: CONF 60 days ( Pretrial: 19951211-19960201, 52 days)
         CA: The sentence is approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement, and forfeiture of pay in excess of $100.00, is suspended for twelve (12) months from the date of the trial, at which time, unless the suspension are sooner vacated, the suspended portion of the sentence will be remitted without further action.

Retention Warning Counseling:

- 19940829 :      For deficient in paying layaway payments

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 95OCT22-95NOV30, 95DEC11-96FEB01 , 96FEB23-97APR09 ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until
14 December 1998, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE
OF COURT-MARTIAL

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 suggests that the positive aspects of his record of service warrant consideration for upgrading his discharge.
2.       The Applicant believes the way that he has lived his life post-service is deserving of an upgrade to Honorable.

Decision

Date: 20 1 2 0809             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. 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 record of service included NAV PERS 1070/613 (Page 13) warning and non-judicial punishment for violation o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 1 specification). It also included S pecial C ourt- M artial for violations of the UCMJ: Article 86 ( Absent without leave, 4 specifications) . Based on the Applicant’s conviction and sentence at a S pecial C ourt- M artial, he was reduced in rank, confined, and separated with a Bad Conduct Discharge.

: (Decisional) ( ) . The Applicant suggests that the positive aspects of his record of service warrant consideration for upgrading his discharge. In reviewing discharges adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Despite the positive aspects of a service member’s record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Violation of Article 86 for greater than 30 days is one such offense. A period of unauthorized absence lasting more than 30 days usually results 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 S pecial or G eneral C ourt- M artial. In this case, the Applicant’s misconduct was adjudicated at a S pecial- C ourt M artial. Because he was found guilty of multiple specifications of violating Article 86, one of which was for 39 days, the Board concluded that clemency based on this issue was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant believes the way that he has lived his life post-service is deserving of an upgrade to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined that clemency based on this issue was 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 | ND1101532

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