Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1300010

Original file (ND1300010.rtf) Auto-classification: Denied

ex-CTRC, USN

Current Discharge and Applicant’s Request

Application Received: 20120926

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         US N R      19910409 - 19910508     Active:          19910509 - 19930707
                                             19930708 - 19970507
                                             19970508 - 20010503

Period of Service Under Review:
Date of Current Enlistment: 20010504     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041029      Highest Rank/Rate: CTRC
Length of Service: Y ear s M onth s 26 D a ys
Education Level:        AFQT: 94
Evaluation M arks:         Performance: 5.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 4.43
Fitness R eports:

Awards and Decorations ( per DD 214):      (2) (2) (2) USCG S OSR (2) NUC GCM (2) JSAM NMCAM

Periods of UA /C ONF :

NJP :

- 20030829 :      Article (Failure to obey order or regulation - wrongfully suggesting sexual favor , 2 specifications )
         Awarded: IN WRITING Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910509 UNTIL 010503 ”

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 of the UCMJ, Article 92 .

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

Applicant’s Issues

1.       The Applicant contends his discharge was based on an isolated incident in 13 years of service with no other adverse action.
2.       The Applicant contends he is innocent , and the charges were based on hearsay and the preponderance of the evidence and not on facts.
3.       The Applicant contends his post-service conduct is worthy of consideration for an upgrade .

Decision

Date: 20 1 3 0613             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 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 for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation - wrongfully suggesting sexual favor, 2 specifications). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Applicant appeared before an administrative separation board on 29 August 2003. The board determined by a majority vote, 2 to 1, that the preponderance of the evidence support ed misconduct due to commission of a serious offense and by a vote of 3 to 0, the board recommend ed retention. The Applicant’s c ommanding o fficer disagreed with the board’s retention recommendation and recommended he be administratively discharged with a General (Under Honorable Conditions) discharge. Ultimately, the Assistant Secretary of the Navy (Manpower & Reserve Affairs), on behalf of the Secretary of the Navy, ordered the Applicant to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense).

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 13 years of service with no other adverse action. The Applicant received Honorable discharges for his first three enlistments. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, the Applicant was found guilty of violating UCMJ Article 92 at NJP and was process for administrative separation. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 92 is one such offense that warrants processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Despite the gravity of his misconduct, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Furthermore, in accordance with the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The Applicant was provided the opportunity to present his case before an administrative board, which determined that the preponderance of the evidence support ed misconduct due to commission of a serious offense . The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends he is innocent , and the charges were based on hearsay and the preponderance of the evidence and not on facts. The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible , and the Applicant’s contention the NJP was based on hearsay and the preponderance of the evidence has no merit. The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for an upgrade . The Applicant submitted evidence of employment as a State of Georgia Peace Officer since 2005, Associate of Applied Science Criminal Justice degree, Bachelor of Science Criminal Justice degree , Master of Arts Teaching degree , Administrator of the Quarter certificate, Basic Juvenile Correctional Training Program completion certificate, Specialized Instructor certification, General Instructor certification, and a letter of reference. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. The Board determined t he characterization of service received was appropriate considering the length of service and UCMJ violation s . 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 | 2013_Navy | ND1300010

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