Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200157

Original file (ND1200157.rtf) Auto-classification: Denied

ex-SMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20111025

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)        19920322 - 19950307     Active:          19950508 - 19990209

Period of Service Under Review:
Date of Current Enlistment: 19990210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070618      Highest Rank/Rate: SM3
Length of Service: Year(s) Month(s) 09 D ay(s)
Education Level:        AFQT: 42
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20000908 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20011002 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    CC:               Retention Warning Counseling:

SPCM:

- 20030430 :      Article (General A rticle , 3 s pecifications )
         Specification 1: Orally communicate to K ___ W ___ certain indecent language, to wit: “What did you have to do to get that ring? I think my wife had seen that ring before and wanted one like it, but I couldn’t afford one that big. I got my wife a ring and she was all over me like a nasty yeast infection . You know how you women are…give you a gift and you can’t get enough . ” or words to that effect.
         Specification 2: Orally communicate to L___ M__ _, certain indecent language, to wit: “ T he reason you’re not married yet is that you haven’t found a man who know s how to go down on you” or words to that effect.
         Specification 3: Orally communicate to an unknown female patron of said Credit Union, certain indecent language, to wit: “Nice a** . Do you know what I can do with that?” or words to that effect.
         Sentence:

Administrative Corrections to the Applicant’s DD 214

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

         “ 19750428 ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until 18 December 2007, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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 wants his discharge upgraded so he can receive VA benefits.
2.       The Applicant indicated he is enrolled in college, suggesting his post-service conduct warrants an upgrade.
3.       The Applicant provided a statement explaining the events that led to his court-martial and subsequent discharge , which he believes was improper and inequitable.

Decision

Date: 20 1 2 1101             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 two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification) and Article 92 ( Failure to obey order or regulation, 2 specifications). It also included one special court-martial for violation of the UCMJ: Ar ticle 134: (General Article, 3 s pecifications). Based on the Applicant’s conviction and sentence at a special court-martial, he was separated with a Bad Conduct Discharge .

: (Non - decisional) The Applicant wants his discharge upgraded so he can receive VA benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to v eterans benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Decisional) ( ) . The Applicant indicate d he is enrolled in college, suggesting that his post-service conduct warrants consideration for upgrading his discharge. 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, he provided character reference letters from his wife and father, a list of character witnesses who were not allowed to testify at his court-martial, and a picture of his family. 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. T he Board determined relief based on this issue was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant provided a statement explaining the events that led to his court-martial and subsequent discharge, which he believes was improper and inequitable. He expressed his belief that the Navy and Marine Corps Appellate Leave Activity d id not review his case thor o ughly , and that he was set up, conspired against, and cheated . R elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. A properly executed review process determined the findings of guilt for the court-martial specifications were proper, and the Bad Conduct Discharge was ordered executed. The Applicant did not produce any evidence to prove otherwise. His statement alone does not overcome the government’s presumption of regularity in this case. 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

Similar Decisions

NAVY | DRB | 2011_Navy | ND1100231

Original file (ND1100231.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible...
USMC | DRB | 2015_Marine | MD1401672

Original file (MD1401672.rtf) Auto-classification: Denied

Based on the offense(s) committed by the Applicant, and after a General Court-Martial Convening Authority review, the Applicant was punitively discharged from the service with a Bad Conduct Discharge. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall...
NAVY | DRB | 2013_Navy | ND1301657

Original file (ND1301657.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants an upgrade to be eligible for Department of Veterans Affairs (VA) benefits.2. ” 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. Additionally, the NDRB has no authority to...
USMC | DRB | 2009_Marine | MD0902582

Original file (MD0902582.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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. Paragraph 6210,...
NAVY | DRB | 2015_Navy | ND1500544

Original file (ND1500544.rtf) Auto-classification: Denied

The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; failure to be at appointed place of duty), Article 92 (Insubordinate conduct towards warrant, noncommissioned, or petty officer; 2 specifications), Article 108 (Damaging government property; $500.00), Article 117 (Provoking speech or gestures; 2 specifications), Article (Failure to obey order or regulation; 8...
USMC | DRB | 2009_Marine | MD0902541

Original file (MD0902541.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19960920 - 19970824Active:19970825 - 2001061120010612 - 20020603 Period of Service Under Review: Date of Current Enlistment: 20020604Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070209Highest Rank:Length of Service: Year(s)Month(s)06 Day(s)Education Level: AFQT:62MOS: 5811Fitness Reports: /ReviewedAwards and Decorations (per DD...
NAVY | DRB | 2009_Navy | ND0902628

Original file (ND0902628.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
NAVY | DRB | 2009_Navy | ND0902267

Original file (ND0902267.rtf) Auto-classification: Denied

The Applicant appeared before an Administrative Separation Board (ASB), who by a unanimous vote (3-0), determined that the preponderance of the evidence supported misconduct by reason of pattern of misconduct and commission of a serious offense. ” 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. If a former...
USMC | DRB | 2010_Marine | MD1001603

Original file (MD1001603.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, 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...
NAVY | DRB | 2009_Navy | ND0900737

Original file (ND0900737.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Related to Post-Service Period: (cont) Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation: Pertinent Regulation/Law A. After a thorough review...

Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1200157

Similar Decisions