Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200921

Original file (ND1200921.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20120216

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19941104 - 19941206     Active:

Period of Service Under Review:
Date of Current Enlistment: 19941207     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970306      Highest Rank/Rate: SN
Length of Service: Y ear s M onth s 20 D ays
Education Level:        AFQT: 32
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : UA: 19951122-19951124, 2 days . CONF:

NJP :
19960514:        Article (Absence without leave - failed to go to appointed place of duty, 2 specifications )
         Specification 1: Morning muster at 0730, 19960406
         Specification 2: Main machinery room at 1300, 19960408
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer)
         Article 107 (False official statement)
         Article 128 (Assault)
         Awarded: Suspended: (Vacated 19961017)

19961017:        Article (Absence without leave, 4 specifications )
         Specification 1: 0700-1400, 19960913
         Specification 2: Failed to go at time prescribed to appointed place of duty 19960923
         Specification 3:0700 , 19960923 until 1300, 19960924
         Specification 4: 0700-0730, 19960929
         Article (General A rticle - indecent liberties with a child between 19960910 and 19960930)
         Awarded: Suspended:

- 19970129 :      Article (Absence without leave 0700, 19970103 until 1300, 19970122, 20 days)
         Awarded: Suspended:

S CM : SPCM: C C :

Retention Warning Counseling:

- 19960514 :      For violation of the UCMJ, Article 86 (2 specifications) , fail to go at the time prescribed to his appointed place of duty at 0730, 19960406, and 1300, 19960408 ; Article 91, willfully disobeyed a lawful order issued by a Chief Petty Officer on 19960322 ; Article 107, making a false official statement on 19960408 ; Artic le 128, assault on 19960322.

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

         “ PATTERN OF MISCONDUCT ”
         “ 951122-951124, 960923-960924, 970103-970122 ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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 .

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

Applicant’s Issues

1.       The Applicant contends he was a good worker, received five medals or ribbons, was denied a rating transfer, and was did not receive counseling after being seen by a psychiatrist.
2.       The Applicant contends his post-service conduct is worthy of consideration.

Decision

Date: 20 1 3 0502             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The Applicant did not show up for his scheduled personal appearance hearing. Since the Applicant did not have a previous documentary review, the NDRB conducted one. The Applicant provided no additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service and medical record.

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 NAVPERS 1070/613 (Page 13) war ning and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 7 specifications: [1] Morning muster at 0730, 19960406; [2] Main machinery room at 1300, 19960408; [3] 0700-1400, 19960913; [4] Failed to go at time prescribed to appointed place of duty 19960923; [5] 0700, 19960923 until 1300, 19960924; [6] 0700-0730, 19960929; [7] 0700, 19970103 until 1300, 19970122, 20 days) , Article (Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer) , Article 107 (False official statement) , Article 128 (Assault) , and Article (General A rticle - indecent liberties with a child between 19960910 and 19960930) . 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 13 December 1996. The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Navy with an Under Other Than Honorable Conditions characterization. His command and S eparati on A uthority approved the ASB’s recommendations and discharged him accordingly.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was a good worker, received five medals or ribbons, was denied a rating transfer, and was did not receive counseling after being seen by a psychiatrist. During the Applicant’s 2 years and 3 months of service, he received a Page 13 retention warning and was found guilty of numerous serious UCMJ article violations at three NJPs. The Applicant clearly met the requirements for administrative separation for a Pattern of Misconduct per the Naval Military Personnel Manual. Even after meeting this requirement in October 1996, his command allowed him to continue his service . H owever, after a 20-day unauthorized absence in January 1997, his command determined he was no longer fit to serve in the Navy and processed him for administrative separation. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant e ngaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the Under Other Than Honorable Conditions discharge was warranted.

He was not inappropriately denied a rating transfer, he was found to be psychiatrically fit for further service by a Navy psychiatrist, and there was nothing in his records that showed he was either not responsible for his actions or should not be held accountable for his misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. The Applicant stated on his DD Form 293 that he has been married for 12 years, is a f ather of two children, is a graduate of the Professional Golfers Career College , and is a supporting member of society. 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 on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 for a personal appearance hearing. 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

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NAVY | DRB | 2012_Navy | ND1200921

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