Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200850

Original file (ND1200850.rtf) Auto-classification: Denied

ex-HA, USN

Current Discharge and Applicant’s Request

Application Received: 20120305

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       EXPIRATION OF SERVICE

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20080228 - 20080729     Active:
                  20080910 - 20090414

Period of Service Under Review:
Date of Current Enlistment: 20090415     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110511      Highest Rank/Rate: HA
Length of Service: Y ear( s ) M onth( s ) 27 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.59

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP:

- 20110222 :      Article ( Disrespect toward a superior commissioned office r )
         Article (Failure to obey order or regulation)
         Article ( Provoking speeches or gestures )
         Awarded: Suspended: [Extracted from Evaluation Report and Counseling Record dated 20110506]

S CM :          SPCM:          C C :

Retention Warning Counseling :

- 20110207 :       For [Date extracted from Commanding Officer’s letter dated 20110301]

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ MISCONDUCT (SERIOUS OFFENSE) ”

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), Change 29, effective 10 November 2009 until 17 August 2011, 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 s of the UCMJ, Article s 89 , 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 unfair , because it was the result of misconduct he did not commit.

Decision

Date : 20 1 3 0213 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 . T he 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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 89 ( Disrespect toward a superior commissioned office r ), Article 92 ( Failure to obey order or regulation ), and Article 117 ( Provoking speeches or gestures ) . 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 a General Court-Martial Convening Authority (GCMCA) review, who found the administrative separation processing for Misconduct (Serious Offense) to be warranted.

: (Decisional) ( ) . The Applicant contends his discharge was unfair , because it was the result of misconduct he did not commit. The Applicant was found guilty at NJP of violating UCMJ Articles 89, 92, and 117, all of which are considered serious offenses per Naval Military Personnel Manual Article 1910-142 and Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial. When notified of separation processing, he elected a review of his administrative separation by the GCMCA and presented his case point-by-point in writing. The GCMCA determined there was sufficient evidence to warrant separation for commission of a serious offense. 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. The evidence provided by the Applicant to the NDRB was also presented to the GCMCA to be considered prior to separation. It is the determination of the NDRB that the evidence in support of the Applicant’s contention does not establish the necessary burden of substantial and credible evidence required to warrant an upgrade of his discharge to Honorable or a change of his narrative reason for separation. The Applicant was found guilty of committing the serious offenses of violating UCMJ Articles 89, 92, and 117 and received a lenient characterization of General as misconduct of this nature would typically result in an Under Other Than Honorable Conditions characterization. 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

USMC | DRB | 2007_Marine | MD0701169

Original file (MD0701169.rtf) Auto-classification: Denied

By a vote of the Narrative Reason shall MISCONDUCT - PATTERN OF MISCONDUCT.Discussion : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board...
NAVY | DRB | 2015_Navy | ND1500594

Original file (ND1500594.rtf) Auto-classification: Denied

Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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 upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2012_Marine | MD1200976

Original file (MD1200976.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the...
NAVY | DRB | 2007_Navy | ND0701179

Original file (ND0701179.rtf) Auto-classification: Denied

Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by one retention warning and two nonjudicial punishments (NJP) for a violations of Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 92 (Dereliction of duties), 117 (Provoking words), and Article 121 (Larceny). Recommendation on Separation: BY Recommendation on Characterization: BY...
NAVY | DRB | 2007_Navy | ND0700346

Original file (ND0700346.rtf) Auto-classification: Denied

The Board determined that an upgrade to honorable would be inappropriate and also determined that the narrative reason was appropriate.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge...
NAVY | DRB | 2009_Navy | ND0900950

Original file (ND0900950.rtf) Auto-classification: Denied

By a unanimous vote of 5-0, the Board determined the characterization of service received, “Under Other Than Honorable Conditions,” and the narrative reason for the discharge; “Misconduct,” shall remain as issued considering the length of service and the UCMJ violations involved.After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process and evidence submitted by the Applicant, theBoard found ADDENDUM: Information for...
NAVY | DRB | 2010_Navy | ND1002123

Original file (ND1002123.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant desires to become eligible for the GI Bill. ” 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 upgrade a discharge for the sole purpose of...
NAVY | DRB | 2007_Navy | ND0700554

Original file (ND0700554.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP)19981222 - 19990815Active: Period of Service Under Review: Date of Enlistment: 19990816Years Contracted:; Extension: Date of Discharge:20001218 Length of Service: 01 Yrs 04Mths03 DysLost Time:Days UA: Days Confined: Education...
NAVY | DRB | 2010_Navy | ND1000476

Original file (ND1000476.rtf) Auto-classification: 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 Applicant’s date of...
NAVY | DRB | 2014_Navy | ND1400087

Original file (ND1400087.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to reenlist in the U.S. Navy.2. 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...

Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1200850

Similar Decisions