Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201295

Original file (ND1201295.rtf) Auto-classification: Denied

ex-BMSN, USN

Current Discharge and Applicant’s Request

Application Received: 20120523

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)        19950228 - 19950404     Active:          19950405 - 19990616 HON
                                    USN      19990617 - 20070612 HON
                                    USN      19970613 - 20091027 HON
Period of Service Under Review:
Date of Current Enlistment: 20091028     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110223      Highest Rank/Rate: BM2
Length of Service: Y ear( s ) M onth( s ) 26 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 1.5 ( 4 )        OTA: 2.74

Awards and Decorations ( per DD 214):      (5) (5) (4) HSM

NJP :

- 20101018 :      Article (False official statements , 2 specifications )
         Specification 1: On or about 14 September 2010, with inten t to deceive, make to LT T_ , an official statement to wit: I put the TV into the storage space as ordered on 14 September 2010, which statement was totally false, and was then known by the said Boatswain’s Mate Second Class C_ to be so false.
         Specification 2: On or about 14 September 2010, with intent to deceive, make to LT T _ , an official statement to wit: I left at 0600 on 24 September 2010 from Wilmington, North Carolina and arrived in Norfolk around 1100 the same day, which statement was totally false, and was then known by the said Boatswain’s Mate Second Class C_ to be so false.
         Article (Larceny and wrongful appropriation)
         Article (General A rt icle , 3 specifications )
         Specification 1: Soliciting another to commit an offense – on or about 23 September 2010, wrongfully advise AWS3 J_ to disobey a general regulation, to wit: U.S. Navy regulations, Article 1137, dated 14 September 1990, to report all violations of the Uniform Code of Milita ry Justice, when he advised AWS3 J_ not to tell anyone that he had come to the squadron to return stolen property.
         Specification 2: Check, worthless, making and uttering-by dishonorably failing to maintain funds – on or about 9 august 2010, make and utter to Army and Air Force Exchange Service, a certain check, in words and figures as follows, to wit: $325.00, and did thereafter dishonorably fail to maintain sufficient funds in the bank for payment of such check in full upon its presentment for payment .
         Specification 3: Check, worthless, making and uttering-by dishonorably failing to maintain funds – on or about 16 may 2010, make and utter to navy Exchange Service Command, a certain check, in words and figures as follows, to wit: $264.99, and did thereafter dishonorably fail to maintain sufficient funds in the bank for payment of such check in full upon its presentment for payment.
         Awarded: ORAL ADMONITION Suspended: Vacated on 20101119

- 20101119 :      Article (Failure to obey order or regulation - wrongfully having possession of a cell phone )
         Article (False official statements)
         Awarded : Susp ended:

S CM :

- 20110106 :       Art icle (Absence without leave, 20101119 - 20101216, 27 days)
         Sentence : Time served: 20101217 - 20110106, 21 days; 20110107 - 20110115, 9 days

SPCM:    C C :

Retention Warning Counseling :

- 20101018 :       For violations of UCMJ Article 107 ( False official s tatement , 2 specs), Article 121 (L arceny and w rongful appropriation ), and Article 134 ( Soliciting a nother to c ommit an o ffense and c hecks, worthless, making and uttering by dishonorably failing to maintain funds , 2 specs)

Administrative Corrections to the Applicant’s DD 214

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

         “ 15 08 23 ”
         “ ”
         “ 19NOV10 TO 16DEC10, 17DEC10 TO 06JAN11, 07JAN11 TO 15JAN11 ”

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 Present, 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 wants an upgrade for better employment opportunities.
2.       The Applicant contends his discharge was based on an isolated incident in over 15 years of service.
3.       The Applicant contends he was not offered the right to request an A dministrative Separation Board.

Decision

Date : 20 1 3 0314             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 standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 107 ( False official statements, 3 specifications) , Article 121 ( Larceny and wrongful appropriation ), Article 134 (General A rticle, 3 specifications), and Article 92 ( Failure to obey order or regulation ) , and for of the UCMJ: Article 86 ( A bsence without leave, 27 days) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure on 17 December 2010 , the Applicant waived , in writing, rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant wants an upgrade for better employment 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.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in over 15 years of service. The Applicant received Honorable discharges for his three previous enlistments from April 1995 to October 2009. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In the Applicant’s fourth enlistment, he clearly demonstrate d that he met the requirements for separation for a P attern of M isconduct with two NJPs, one retention warning counseling, and one summary court-martial. The Applicant’s contention is not supported by the evidence in his record , and the NDRB determined it did not merit consideration for a change of his discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends he was not offered the right to request an Administrative Separation Board during his separation proceedings. The record shows that o n 17 December 2010 , t he Applicant was afforded the right s to consult with qualified counsel, submit a written statement, and request an administrative board . However, he waived his rights in writing and signed his waiver acknowledging he understood his rights. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully denied an administrative board . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

S ummary: 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 | ND1201295

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