Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101802

Original file (ND1101802.rtf) Auto-classification: Denied

ex-AWR3, USN

Current Discharge and Applicant’s Request

Application Received: 20110720

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)        20030915 - 20040719     Active: 20040720 - 20080718 HON

Period of Service Under Review:
Date of Current Enlistment: 20080719     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100209      Highest Rank/Rate: AWR3
Length of Service: 01 Y ear M onth s 22 D a ys
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.72

Awards and Decorations ( per DD 214):      Pistol EX , NDSM , GWOTSM , BATTLE “ E ” , NA , EAWS

Periods of UA /C ONF :

NJP : 1
- 20 100120 :      Article 92 (Failure to obey order or regulation , wrongfully having an unduly familiar relationship with a female officer in command)
         Awarded: RIR FOP EPD ORAL REPRIMAND                Suspended: RIR FOP

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

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: “ PISTOL EXPERT MEDAL , NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, BATTLE “E” RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NAVAL AIRCREWMAN, ENLISTED AVIATION WARFARE SPECIALIST ”

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 :

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

Applicant’s Issues

1.        The Applicant contends his discharge was based on two unrelated incidents.
2.       The Applicant contends that his discharge was inequitable , because his unduly familiar relationship with a female Naval officer in his command did not interfere with his work or command morale.

Decision

Date : 20 1 2 0906             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’s record of service included one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, wrongfully having an unduly familiar relationship with a female officer in command). Based on the offense committed by the Applicant, his command administratively processed him for separation for a Pattern of Misconduct . When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to c onsult with a qualified counsel and submit a written statement . The Applicant was not entitl ed to an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was based on two unrelated incidents. To be separated for a Pattern of Misconduct, there must be an NJP - Page 13 - NJP in the current enlistment. The incidents do not need to be related to meet the definition of a Pattern of Misconduct. However, the incidents must be in the same enlistment. The Applicant had an NJP and a Page 13 retention warning in his first enlistment. In his second enlistment, he only had the Article 92 violation. Therefore, he was improperly separated for a Pattern of Misconduct. Since the Applicant was not notified of any other reason for separation, the NDRB voted 5-0 to change his Narrative Reason for Separation to Secretarial Authority.

As to the Character of Service, the Applicant, by his violation of Article 92, met the requirements for separation due to Misconduct (Commission of a Serious Offense). Per the Manual for Courts-Martial, violation of Article 92 is considered a serious offense that could have result ed in a punitive discharge at a Special or General Court-Martial. His command, however, opted to use the more lenient administrative separation process. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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 outweighed the positive aspects of the member’s service record. Despite the Applicant’s otherwise excellent record, his violation of Article 92 was a significant negative aspect of his second enlistment. Therefore, the NDRB determined that an upgrade was not warranted and voted to keep the Character of Service at General (Under Honorable Conditions). Relief denied.

: (Decisional) ( ) . The Applicant contends that his unduly familiar relationship with a female Naval officer in his command did not interfere wi th his work or command morale. A male enlisted member having an unduly familiar relationship with a female officer in his command violates one of the basic foundations upon which the military exists and clearly violate d UCMJ Article 92. His command, however, decided on the very lenient administrative discharge process. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was 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 the discharge was equitable, however, the reason for separation was improper. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) but the narrative reason for separation shall change to . 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.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 .

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 | ND1101802

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