Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200232

Original file (ND1200232.rtf) Auto-classification: Denied

ex-MMFR, USN

Current Discharge and Applicant’s Request

Application Received: 20111108

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:       O R UNCHARACTERIZED (ENTRY LEVEL SEPARATION)
         Narrative Reason change to:       COG-Physical or Mental Condition

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20050222     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050922      Highest Rank/Rate: MMFA
Length of Service:
         Inactive:        Year(s) Month(s) 17 D ay(s)
         Active   Year(s) Month(s) 01 D ay(s)
Education Level:        AFQT: 57
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :

- 20050902 :      Article (Failure to obey order or regulation - self-injury without intent to avoid service by attempting to overdose on prescription Zoloft )
         Article 108 (Military property of the United States - sale, loss, damage, destruction, or wrongful disposition by throwing a chair through a window )
         Awarded: Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling:

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:

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

Applicant’s Issues

1.       The Applicant contends his discharge was inequitable g iven the significant extenuating and mitigating circumstances surrounding his misconduct , specifically, personal problems, denial of leave, inability to complete training due to claustrophobic reaction to training equipment, and slow and cumbersome administrative processes .
2.       The Applicant contends he should have received an Uncharacterized (Entry Level Separation) , because it was available and being processed at the time of his misconduct and would have been more appropriate under the circumstances.
3.       The Applicant contends his accomplishments and demonstrated character since his discharge prove that an Other Than Honorable (OTH) characterization is neither necessary nor appropriate.
4.       The Applicant contends procedural irregularities render the discharge invalid and futher substantiate the unfairness of the OTH characterization of service .
Decision

Date: 20 1 2 1220             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. The Applicant’s record of service include d one non-judicial punishment for violations of the UCMJ: Article 92 ( Failure to obey order or regulation, 1 specification) and Article 108 (Loss, damage, destruction, disposition of military proper t y , 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of administrative separation processing using the procedure, the Applicant elected his right to consult with a qualified counsel . He waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge was inequitable given the significant extenuating and mitigating circumstances surrounding his misconduct , specifically, personal problems, denial of leave, inability to complete training due to claustrophobic reaction to training equipment, and slow and cumbersome administrative processes . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s NJP was inconsistent with the standards of discipline in the U .S. Navy . However, after considering the facts and circumstances unique to this case, the NDRB determined that specific circumstances constituting the violations did not warrant separation with an Other Than Honorable characterization of service. While the discharge was proper, partial relief is warranted based on equitable grounds , and the characterization will change to General (Under Honorable Conditions). Full relief to Honorable was not granted as there was misconduct during the Applicant’s service .

: (Decisional) ( ) . The Applicant contends he should have received an Uncharacterized (Entry Level Separation) , because it was available and being processed at the time of his misconduct and would have been more appropriate under the circumstances. Navy regulations direct that the Character of Service for members notified of intended recommendation for discharge while in an entry level status (within the first 180 days of enlistment) be Uncharacterized except in circumstances where service has been so meritorious that an Honorable is clearly warranted. In cases of misconduct while in an entry level status , a less favorable characterization of service may be assigned following different separation procedures. The Applicant’s record showed no significant meritorious service that would warrant an Honorable characterization of service. Even though the misconduct occurred while the Applicant was in an entry level status, he was not notified of separation proceedings until after he had already served more than 180 days on active duty. Therefore, because he was notified of separation after 180 days of service and because of his misconduct, an Uncharacterized (Entry Level Separation) is not appropriate or applicable. Relief denied.

: (Decisional) ( ) . The Applicant contends his accomplishments and demonstrated character since his discharge prove that an Other Than Honorable characterization is neither necessary nor appropriate. 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 a personal statement, evidence of completing Basic Peace Officer Certification, college attendance, and three character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , h owever, 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 his in-service misconduct was an aberration. Relief denied.

Issue 4: (Decisional) ( ) . T he Applicant contends procedural irregularities render the discharge invalid and further substantiate the unfairness of the OTH . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that there were procedural irregularities rendering his discharge invalid. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. The NDRB determined the discharge was proper and equitable based on this issue. 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 but 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.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, 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 92 and 108 .

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 | 2012_Navy | ND1200232

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