Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1102136

Original file (ND1102136.rtf) Auto-classification: Denied

ex-ADAN, USN

Current Discharge and Applicant’s Request

Application Received: 20110920

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)        20040825 - 200411 30     Active:

Period of Service Under Review:
Date of Current Enlistment: 20041201     Age at Enlistment:
Period of E nlistment : Years 17 MONTHS Extension
Date of Discharge: 20100212      Highest Rank/Rate: ADAN
Length of Service: Year(s) Month(s) 12 D ay(s)
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.4 ( 7 )      Behavior: 2.7 ( 7 )        OTA: 3.05

Awards and Decorations ( per DD 214):      NRTSR

Periods of C ONF :

NJP :

- 20080211 :      Article (Absence without leave)
         Awarded: Suspended: [Extracted from Commanding Officer’s letter dated 20100303.]

- 20100125 :      Article (Absence without leave, 2 specifications )
         Specification 1: 20100113-20100118 , 6 days
         Specification 2: 20100121
         Awarded: Suspended:

S CM :    SPCM:

CIVIL ARREST:

- 20100110 :      Charges: Assault, aggravated assault, burglary, and possession of a weapon with unlawful use [Charges extracted from Preliminary Investigating Officer’s letter dated 20100122.]

C C :

- 20091101 :       Offense: DUI [Date extracted from Commanding Officer’s letter dated 20100303. Charge extracted from Preliminary Investigating Officer’s letter dated 20100122]
         Sentence :

Retention Warning Counseling:

- 20100125 :      Details NFIR [Date extracted from Commanding Officer’s letter dated 20100303.]

Administrative Corrections to the Applicant’s DD 214

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

         “ 08JAN 13 TO 08JAN1 8 ”

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 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 111 (Drunken driving) and 121 (Larceny) .

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

Applicant’s Issues

1.       The Applicant requests an upgrade to receive education benefits.
2.       The Applicant contends his command wrongfully discharged him before his civilian charges were adjudicated .
3.       The Applicant contends his discharge occurred while serving on an enlistment extension and thus does not apply to him.

Decision

Date: 20 1 2 1009             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 3 specifications ) , one civilian conviction for driving under the influence , and a civilian arrest for assault, aggravated assault, burglary, and possession of a weapon with unlawful use. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement .

The Applicant’s record reflects the following comments from his Reporting Senior after the NJP dated 25 Jan 2010, “Personal conduct off duty has consistently been poor. His behavior off duty has reflected poorly on himself, the command, and the Navy. His actions have been an unsustainable burden on his chain of command. ” Also, the Applicant’s Commanding Officer provided the following comments on the Applicant’s administration separation recommendation , “The Applicant has demonstrated that he is unsuitable for retention in the Naval Service due to his commission of a serious offense, specifically aggravated assault. The Applicant has been in the unit for approximately seventeen months and has become a burden on the command and proven himself unable to continue with duties as a Sailor in the U.S. Navy. ”

: (Nondecisional) The Applicant requests an upgrade to receive education benefits. 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.

: (Decisional) ( ) . The Applicant contends his command discharged him before his civilian charges were adjudicated. In accordance with the Naval Military Personnel Manual, service members may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponde rance of evidence. In other words, innocent until proven guilty does not apply to a command’s recommendation to administratively separate a Sailor. By the Applicant’s civilian arrest, his commanding officer believed that a preponderance of the evidence existed to warrant discharge from the Navy. In addition to his civilian arrest, the Applicant’s service included a retention w arning , two NJPs f or violations of UCMJ Article 86, and a civilian conviction for DUI (which equates to violation of UCMJ Article 111). Despite the repetitive and serious nature of the Applicant’s misconduct, his command only recommended separation with a General discharge. The Applicant’s misconduct typically would have resulted in an Under Other Than Honorable Conditions discharge, however, the NDRB is not authorized to change a former service member’s discharge to a harsher characterization. The NDRB determined the Applicant’s discharge was proper and very equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge occurred while serving on an enlistment extension and thus the discharge does not apply to him . Although the Applicant had served his original four-year contract, characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member. The Applicant’s contention thus has no applicability. He was on his first enlistment contract (which included the extension) when he was properly and equitably discharged with a General characterization of service. 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 | ND1102136

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