Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200508

Original file (ND1200508.rtf) Auto-classification: Denied

ex-LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20120104

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6A

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       FROM “ MISCONDUCT ”

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19920224 - 19920330     Active: 19920331 - 19920730 HON (To accept commission as a USNR Officer)

Period of Service Under Review:
Date of Appointment : 19920731     Age: 2 3
Years Contracted : Indefinite
Date of Discharge: 19970228      Highest Rank : LT JG
Length of Service: Year(s) Month(s) 28 D ay(s)
Education Level:         AFQT: N/A
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 19960508 :      Article (Failure to obey order or regulation, fraternization)
         Article 133 (Conduct unbecoming an officer and a gentleman)
         Article 134 (General A rticle, knowingly fraternized with an enlisted person on terms of military equality)
         Awarded: Punitive Letter of Reprimand Appealed 19960516. Appeal denied 19960711.

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

NDRB Documentary Review Conducted (date):        19990119
NDRB Documentary Review Docket Number:   ND98-00450
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 it is inequitable to continue to suffer the adverse effects of his less than fully honorable discharge.
2.       The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date: 20 1 3 0424             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 included non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 1 specification), Article 133 (Conduct unbecoming an officer and a gentleman, 1 specification), and Article 134 ( General Article - Fraternization, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. T he NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, according to the Applicant’s testimony, he was discharged after submitting a request for a qualified resignation.

: (Decisional) ( ) . The Applicant contends it is inequitable to continue to suffer the adverse effects of his less than fully honorable discharge. 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 and his testimony, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant deliberately committed the offenses that led to his discharge. R elief based solely on his contention that it is unfair for him to continue to suffer the effects of his discharge has no bearing on whether his discharge was improper or inequitable at the time of discharge. The NDRB concluded that the characterization issued at the time of discharge was consistent with that given to commissioned officers who commit suc h offenses . The NDRB also concluded that the Narrative Reason for Separation accurately describes why he was discharged. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for upgrading his discharge. 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 references and evidence of continuous civilian employment, service to country, community service, family stability, financial stability, and a crime-free lifestyle. Based on facts and circumstances unique to this case, and the Applicant’s post-service conduct in conjunction with his in-service performance and conduct prior to the incident that led to his discharge, the Board determined his in-service misconduct was an aberration and not indica tive of his overall character. Under typical circumstances, p ost-service conduct would not be considered a valid reason for changing the Narrative Reason for Separation when it accurately and appropriately describes why a service member was discharge d . However, i n this case, the Board determined that an exception was warranted due the Applicant’s post-Navy meritorious military service to the count r y . Now a Major in the U.S. Army National Guard, the Applicant demonstrated exceptional post-service conduct by his service in Afghanistan, during which he flew combat missions. On one such mission, he was involved in an engagement with enemy combatan t s, w hich resulted in the destruction of the combatants . He received t he Air Medal for his actions. The NDRB determined his actions were so meritorious that a change to the Narrative Reason for Separation was warranted in this case. Relief granted.

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 change to . The Applicant is no t eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, for further review using DD Form 149.

Pertinent Regulation/Law

A Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the N aval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

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 | 2012_Navy | ND1200508

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