Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1102168

Original file (ND1102168.rtf) Auto-classification: Denied

ex-OSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20110921

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)        20010430 - 20010808     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010809     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040628      Highest Rank/Rate: OS3
Length of Service: Y ear( s ) M onth( s ) 20 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 2.3 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 2.50

Awards and Decorations ( per DD 214):      Pistol (2) (2)

Periods of C ONF :

NJP :     SPCM:    CC:

S CM :

- 20031120 :       Art icle (Absence without leave, 20030717-20030718 , 1 day ; 20030906-20030908 , 2 days ; 20030922-20031016 , 24 days )
         Art icle (Drunken incapacitation in the performance of duties on or about 20031028)
         Sentence : 15 days

- 20040603 :       Art icle 81 ( Conspiracy, conspire with SA K_ to forge and utter checks in USS GEORGE WASHINGTON ship’s store on or about 20040409)
         Art icle (False official statements, made a false official statement to S pecial A gent Y_ on or about 20040420)
         Art icle (Larceny , 3 s pecification s )
         Specification 1: Wrongful steal checks 716 and 727, the property of O peration Specialist Second Class J_ on or about 20040407
         Specification 2: Wrongfully steal U.S. currency, 3 camcorders, 2 digital cameras, and one JVC CD disk changer, of a v alue of about $2,915.30 on or about 20040409
         Specification 3: Wrongful steal U.S. currency and 2 digital cameras, military property, of a value of about $1,630.00 on or about 20040410
         Art icle 123 (Forgery , 2 s pecifications )
         Specification 1: Wrongfully make the signature of Operation Specialist Second Class J_ on or about 20040409
         Specification 2: Wrongfully make the signature of Operations Specialist Second Class J_ on or about 20040410
         Sentence :

Retention Warning Counseling :

- 20031205 :       For following deficiencies in performance identified in S ummary C ourt -M artial held 20031111 , violation of A rticle s 86 and 134

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ 03JUL17 TO 03JUL18, 03SEP06 TO 03SEP08, 03SEP22 TO 03OCT28 ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .

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

Applicant’s Issues

1.        The Applicant seeks an upgrade due to passage of time.
2.       The Applicant seeks an upgrade to enhance employment opportunities.
3.       The Applicant wants a better life for his family.
4 .       The Applicant faults youth and immaturity for his misconduct.
5 .       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 1011             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 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 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 NAVP ERS 1070/613 (Page 13) warning and for of the UCMJ: Article 81 ( Conspiracy, conspire with SA K_ to forge and utter checks in USS GEORGE WASHINGTON ship’s store on or about 20040409 ) , Article 86 (Absence without leave, 20030717-20030718, 1 day; 20030906-20030908, 2 days; 20030922-20031016, 24 days), Article 107 (False official statements, made a false official statement to S pecial A gent Y_ on or about 20040420), Article 121 (Larceny, 3 specifications: Specification 1 - Wrongful ly steal checks which w ere the property of Operation Specialist Second Class J_ on or about 20040407 , Specification 2 - Wrongfully steal U.S. currency, 3 camcorders, 2 digital cameras, and one JVC CD disk changer, of a v alue of about $2,915.30 on or about 20040409 , Specification 3 - Wrongful ly steal U.S. currency and 2 digital cameras, military property, of a value of about $1,630.00 on or about 20040410 ) , Article 123 (Forgery, 2 specifications: Specification 1 - Wrongfully make the signature of Operation Specialist Second Class J_ on or about 20040409 and Specification 2 - Wrongfully make the signature of Operations Specialist Second Class J_ on or about 20040410 ), and Article 134 (Drunken incapacitation in the performance of duties on or about 20031028) . 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, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant mentioned it has been almost eight years since the incident has happened , therefore seek ing an upgrade due to passage of time. 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.

: (Nondecisional) The App licant seeks an upgrade to enhance employment 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.

: (Nondecisional) The Applicant wants his life back and does not want his family to lose out on anymore than they already have . The NDRB acknowledges the Applicant’s desire to provide a better life for himself and his family , however, this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s ability to provide a better life for himself or his family.

: (Decisional) ( ) . The Applicant faults youth and recklessness for his misconduct. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. During his two years and ten months of service, the Applicant was found guilty of committing numerous serious violations at two Summary Courts-Martial. He is extremely fortunate to not have received a Bad Conduct Discharge at a Special Court-Martial. Instead, his command chose the lenient route of administratively discharging him. Relief denied.

: (Decisional) ( ) . The Applicant stated he is married with five children, the state gave him custody of one of his children from a previous relationship, he doesn’t have a criminal record, and is a college student . The NDRB considers 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. The Applicant provided character reference letters from his wife and mother . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 | ND1102168

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