Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201255

Original file (ND1201255.rtf) Auto-classification: Denied

ex-ABFAA, USN

Current Discharge and Applicant’s Request

Application Received: 20120510

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020208 - 20020709     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020710     Age at Enlistment:
Period of E nlistment : Years 26 Extension
Date of Discharge: 20061023      Highest Rank/Rate: ABFAN
Length of Service: Y ear( s ) M onth( s ) 14 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 2.8 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 2.71

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20040909 :      Article (Failure to obey order or regulation , violation of student phase regulation )
         Article (General A rticle, coh abitation, wrongful, 2 specifications )
         Specification 1: Wrongful cohabitation with a male in the berthing room
         Specification 2 : Wrongful cohabitation with a male in the berthing room
         Awarded: Suspended:

- 20051215 :      Article 108 ( Military property of the United States - S ale, loss, damage, destruction, or wrongful disposition )
         Awarded : Susp ended:

- 20060622 :      Article (Absence without leave , 20060530-200606 08, 10 days )
         Article (Failure to obey order or regulation)
         Article (False official statement)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20040913 :       Details NFIR [Date extracted from Commanding Officer’s letter dated 20060908]

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 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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 seeks to use the GI Bill.
2.       The Applicant contends her youth contributed to her misconduct .
3.       The Applicant contends medical problems kept her from working to her full potential.
4.       The Applicant contends there is a “three strikes you are out” policy.
5.       The Applicant contends she is innocent of her second and third NJP violations.
6.       The Applicant contends her post-service conduct is worthy of an upgrade.

Decision

Date: 20 1 3 0307             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. 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 (Absence without leave , 10 days ) , Article (Failure to obey order or regulation , 2 specification s ) , Article (False official statement) , Article 108 ( Military property of the United States - S ale, loss, damage, destruction, or wrongful disposition) , and Article (General A rticle, cohabitation, wrongful , 2 specifications : Specification s 1 - 2 : Wrongful cohabitation with a male in the berthing room ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Marti al Convening Authority review . The Applicant was notified of separation proceedings for Pattern of Misconduct and Commission of a Serious Offense.

: (Nondecisional) The Applicant seeks to use the GI Bill. 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.

: (Decisional) ( ) . The Applicant contends her youth contributed to her misconduct. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends medical problems kept her from working to her full potential. The Applicant did not elaborate on what her conditions were, how they interfered with her performance, or how they mitigated her misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated medical problems to be of sufficient nature to excuse the Applicant’s misconduct. The NDRB determined the Applicant’s medical problems did not mitigate or excuse her misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends there is a “three strikes you are out” policy . Although the Applicant was separated after her third NJP, there is no “three strikes you are out” policy . The Applicant was notified of separation proceedings for Pattern of Misconduct and Commission of a Serious Offense. Although the Applicant could have been processed for separation after her first NJP in September 2004 for her Article 92 violation , which is considered a S erious Offense, her command chose not to process her for separation at that time. She met the

requirements for separation due to a Pattern of Misconduct after violating her 13 September 2004 Page 13 retention warning with her second NJP. Even though she could have been separated after her first and then again after her second NJPs, her command allowed her to continue her service. However, continued misconduct led the command to administratively separate her for a Pattern of Misconduct. The NDRB determined the Applicant’s discharge was warranted , proper, and equitable. Relief denied.

5 : (Decisional) ( ) . The Applicant contends she is innocent of her second and third NJP violations . The record of evidence clearly shows the Applicant waived h er rights to trial by court-martial and a General Court-Martial Convening Authority review during her separation proceedings . If the Applicant felt s he was mistakenly charged with a crime, it was h er obligation to contest those charges at the time they were made. During a trial, s he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support h er contention s , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

6 : (Decisional) ( ) . The Applicant contends her post-service conduct is worthy of an upgrade. She suggests being a mother, not having any issues with the law in almost five years, and going to school warrants an upgrade to Honorable. 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, s he failed to provide any documentary evidence on h er 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. 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

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NAVY | DRB | 2012_Navy | ND1201255

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