Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201457

Original file (ND1201457.rtf) Auto-classification: Denied

ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received: 20120619

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:         USANGR   20030730 - 20040620 COG Active: USANG 20040621 - 20041124 HON
         USANGR   20050920 - 20051028 COG          USANG 20051029 - 20070331 HON

Period of Service Under Review:
Date of Current Enlistment: 20070824     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20111130      Highest Rank/Rate: EN3
Length of Service: Y ear s M onth s 07 D a ys
Education Level:        AFQT: 6
Evaluation M arks:         Performance: 3.3 ( 4 )      Behavior: 3.3 ( 4 )        OTA: 3.30

Awards and Decorations ( per DD 214):      Rifle Pistol AAM AGCM NCOPDR ASR OSR AFRM (w/M) MNFOM (2)

Periods of C ONF :

NJP :

- 20110511 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20110829 :      Article (Absence without leave)
         Awarded : NFIR Susp ended: NFIR

S CM :    SPCM:    C C :

Retention Warning Counseling :

         - 20110511:               Extracted from Administrative Separation Processing Notification of 16 November 2011

Administrative Corrections to the Applicant’s DD 214

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

         “ 20 07 08 24 ”
         “ 04 03 07 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NA V Y RIFLE EXPERT MEDAL, NA V Y PISTOL MARK S MANSHIP RIBBON, ARMY ACHIEVEMENT MEDAL, ARMY GOOD CONDUCT M E DAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NONCOMMISSIONED OFFICER PROFESSIONAL DEVELOPMENT RIBBON, ARMY SERVICE RIBBON, OVERSEAS SERVICE RIBBON, ARMED FORCES RESERVE MEDAL W/ " M " DEVICE, MULTINATIONAL FORCE AND OBSERVERS MEDAL (2) , ESWS ”
         “ PATTERN OF MISCONDUCT ”

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 contends he was not properly represented or informed of his rights during his administrative discharge .
2.       The Applicant contends he was denied an administrative board despite having more than six years of active duty service.

Decision

Date: 20 1 3 0418             Location: Washington D.C .        R epresentation : county                                     veterans service office

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. 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 one NAVPERS 1070/13 (Page 13) retention counseling warning and nonjudicial punishments (NJPs) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation) and Article 86 ( Absence without leave). Based on the offe nses 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 an administrative board .

: (Decisional) ( ) . The Applicant contends he was not properly represented or informed of his rights during his administrative discharge. Additionally, t he Applicant contends when completing his NAVPERS 1910/32 (Administrative Separation Processing Notification Procedure) , he was directed to waive his entitlements to request qualified counsel, to submit a written statement, and to request an administrative board. The Applicant’s record clearly shows that he waived these entitlements , in writing, during his separation process. The Applicant contends that he was ordered to sign his separation documents without explanation and was told that he would not be negatively a ffected by doing so . The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and c redible evidence to support this issue. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he was told by his command that he was not entitled to an administrative board , because he did not have six or more ye ars of active duty service. Available record s show that the Applicant does have more than six years of total active duty service but that he waived his right to an administrative board as evidenced by his initials and signature on NAVPERS 1910/32 dated 16 November 2011. Although the Applicant claims he was misinformed and forced to waive his right to an administrative board, there is no evidence in the record, nor has the Applicant produced any evidence, to support this contention. The Applicant’s statements alone do not overcome the governmen t’s presumption of regularity. He was afforded the rights to consult with counsel, to submit a written statement to the Separation Authority, and to appear before an administrative board, yet he waived all of these rights in writing. The Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) and yet his command recommended a lenient General discharge. Misconduct of this frequency would often result in an Under Other Than Honorable Conditions discharge. Even if the Applicant appeared before an administrative board, the result would almost certainly have been the same as recommended by his commanding officer. The NDRB determined his discharge was proper and very equitable. 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 | ND1201457

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