Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200752

Original file (ND1200752.rtf) Auto-classification: Denied

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20120214

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:       or
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20041215 - 20050725     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050726     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061229      Highest Rank/Rate: AA
Length of Service: Y ear M onth s 03 D ays
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 2.0 ( 3 )      Behavior: 1.3 ( 3 )        OTA: 1.66

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20060623:      Article (Failure to obey order or regulation - underage consumption of alcohol)
         Article (General A rticle - drunkenness, incapacitation for duty)
         Awarded: Suspended:

- 20060713 :      Article (Failure to obey order or regulation - missing restriction muster, 3 specifications )
         Awarded: Suspended:

- 20060913 :      Article (Absence without leave, failure to go to appointed place of duty , 2 specifications )
         Article (Failure to obey order or regulation)
         Article 117 (Provoking speech and gestures, racial epithets sent via e-mail)
         Awarded: Suspended:

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

NDRB Documentary Review Conducted (date):        20110707
NDRB Documentary Review Docket Number:   ND10-01266
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:

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 117 .

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

Applicant’s Issues

1.       The Applicant contends his discharge was inequitable.
2 .       The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade.

Decision

Date: 20 1 3 08 19             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave - failure to go to appointed place of duty, 2 specifications ), Article (Failure to obey order or regulation, 5 specifications: [1] Underage consumption of alcohol; [2-4] missing restriction muster; [5] Order or regulation ), Article 117 (Provoking speech and gestures, racial epithets sent via e-mail ) , and Article (General A rticle - drunkenness, incapacitation for duty. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant appeared before an A dministrative S eparation B oard (ASB) on 18 October 2005. The ASB determined by a majority vote, 2-1, that the preponderance of the evidence supported the notification for separation, Misconduct ( Serious Offense ), and by a unanimous vote recommended the Applicant should be separated Under Other Than Honorable Conditions. The command and S eparati on A uthority approved the ASB’s recommendations and discharged him accordingly.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was inequitable. With the Applicant’s violations of UCMJ Articles 92 and 117, he met the requirements for administrative separation for Misconduct (Serious Offense) since these articles warrant a punitive discharge per Appendix 12 of the Manual for Courts-Martial. The NDRB further determined the Under Other Than Honorable Conditions characterization of service was equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade. 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 and evidence of financial stability and continuous employment as an oxygen system installer and volunteer firefighter , completion certificates in various fire science courses and emergency medical technician classes , and 27 letters of reference . After a careful review of the Applican t’ s post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness , and the facts and circumstances unique to this case, the NDRB determined the Applicant’s service had been honest and faithful but significant negative aspects of his conduct or performance outweighed the positive aspects of his military record and relief was warranted with an upgrade to General (Under Honorable Conditions). Relief granted.

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 the discharge was proper and equitable at the time of the discharge. However, based on the facts and circumstances unique to this case and after considering the Applicant’s post-service conduct in conjunction with his testimony, the testimony of his witness and the facts and circumstances unique to this case, the Board determined relief was warranted. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) but the narrative reason for separation shall remain . The Applicant is not eligible for further reviews from the NDRB. The Applicant 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. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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

USMC | DRB | 2010_Marine | MD1001589

Original file (MD1001589.rtf) Auto-classification: Denied

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 . ” 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...
NAVY | DRB | 2011_Navy | ND1101834

Original file (ND1101834.rtf) Auto-classification: Denied

Narrative Reason for Discharge:Authority for Discharge:MILPERSMAN3630600 [PATTERN OF MISCONDUCT] DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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.
NAVY | DRB | 2013_Navy | ND1301031

Original file (ND1301031.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, medical and 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 is not eligible for further reviews from the NDRB. ”...
NAVY | DRB | 2010_Navy | ND1000381

Original file (ND1000381.rtf) Auto-classification: Denied

The Applicant was properly notified that he was being administratively processed and appeared before an administrative board, who determined that he be separated from the Navy with an Under Other Than Honorable Conditions characterization. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s personal testimony, post service factors, summary of service, official medical and record entries, and the discharge process, the Board found Therefore,...
NAVY | DRB | 2011_Navy | ND1100766

Original file (ND1100766.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)20021115 - 20030407Active: 20030408 - 20081106 HON Period of Service Under Review: Date of Current Enlistment: 20081107Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20091130Highest Rank/Rate:FC1Length of Service:YearMonths24 DaysEducation Level:AFQT: 80EvaluationMarks:Performance:3.0(1)Behavior:1.0(1)OTA: 2.86Awards and Decorations (per DD...
USMC | DRB | 2011_Marine | MD1101078

Original file (MD1101078.rtf) Auto-classification: Denied

After a thorough review of the records, supporting documents, facts, testimony, and circumstances unique to this case, the NDRB determined that the standard of preponderance of evidence was not met at the ASB and that relief was warranted. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, testimony, and discharge process, the Board found the discharge was improper.Based on facts and circumstances unique...
NAVY | DRB | 2010_Navy | ND1001652

Original file (ND1001652.rtf) Auto-classification: Denied

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 . 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...
NAVY | DRB | 2009_Navy | ND0900957

Original file (ND0900957.rtf) Auto-classification: Denied

The Board did complete a thorough review of the circumstances which 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) warning, for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation - 2 specifications: underage drinking and wrongfully having an interpersonal relationship with an E-4); and Summary Court-Martial...
NAVY | DRB | 2011_Navy | ND1100140

Original file (ND1100140.rtf) Auto-classification: Denied

The NDRB determined that relief based on this issue was not warranted. The Board determined that relief based on this issue, in conjunction with his in-service conduct, was not warranted.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, summary of service, record entries, and discharge process, the Board foundThe Board determined that the awarded characterization of service shall , but the narrative reason for separation shall...
NAVY | DRB | 2012_Navy | ND1200067

Original file (ND1200067.rtf) Auto-classification: Denied

The Applicant contends his record of service warrants an upgrade. The civilian conviction provided the preponderance of the evidence that he committed a serious offense, he elected an ASB, the ASB determined he committed the offenses and recommended a General discharge, and the Separation Authority reviewed the findings and ordered the Applicant to be discharged. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1200752

Similar Decisions