Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1300174

Original file (ND1300174.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20121101

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)        20040915 - 20050616     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050617     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060616      Highest Rank/Rate: SN
Length of Service: Y ear M onth 00 D a y
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

NJP :     SPCM:    CC:      Retention Warning Counseling :

S CM :

- 20060413 :       Art icle (Desertion, 20060212 - 20060227, 17 days)
         Art icle (Missing movement - on or about 20060216, through design miss the movement of the USS THE SULLIVANS (DDG-68) , which he was required in the course of duty to move)
         Art icle (Disrespect toward superior commissioned officer, to wit: on or about 20060306, behave himself with disrespect toward USS THE SULLIVANS (DDG-68) Executive Officer LCDR ______, his superior commissioned officer, then known to be same, by saying to him , “I’m not going f____ anywhere, man. I don’t need to listen to you” and by contemptuously turning his head away from and not looking at LCDR ______ while LCDR______ was talking to SN ______) .
         Art icle (Insubordinate conduct toward warrant officer, noncommissioned offi cer, or petty officer, to wit: on or about 20060306, having received a lawful order from Master at Arms First Class Petty Officer ______, a Petty Officer, then known by the SNM to be a Petty Officer, to get into uniform for XOI, an order which it was his duty to obey did willfully disobey the same)
         Sentence : (20060413 - 20060513, 30 days)

Administrative Corrections to the Applicant’s DD 214

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

         “ 05 06 17 ”
         “ 00 10 13 ”
         “ MISCONDUCT (DESERTION) ”

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 11, effective 26 April 2005 until 11 June 2008, 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 s 85, 87, 89 , and 91 .

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

Applicant’s Issues

1.       The Applicant seeks a n upgrade to reenlist into the Armed Forces.
2.       The Applicant contends he forcibly married, went into debt, had a baby, bought a car, and was very immature.
3.       The Applicant contends his post-service achievements warrant consideration for an upgrade.

Decision

Date: 20 1 3 0724             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 of the UCMJ: Article 85 ( Desertion, 20060212 - 20060227, 17 days ) , Article 87 (Missing movement - on or about 20060216, through design miss the movement of the USS THE SULLIVANS (DDG-68) , which he was required in the course of duty to move), Article 89 (Disrespect toward superior commissioned officer, to wit: on or about 20060306, behave himself with disrespect toward USS THE SULLIVANS (DDG-68) Executive Officer LCDR ______, his superior commissioned officer, then known to be same, by saying to him , “I’m not going f____ anywhere, man. I don’t need to listen to you” and by contemptuously turning his head away from and not looking at LCDR ______ while LCDR______ was talking to SN ______), and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned offi cer, or petty officer, to wit: on or about 20060306, having received a lawful order from Master at Arms First Class Petty Officer ______, a Petty Officer, then known by the SNM to be a Petty Officer, to get into uniform for XOI, an order which it was his duty to obey did willfully disobey the same). 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 an administrative board .

: (Nondecisional) The Applicant seeks a n upgrade to reenlist into the Armed Forces. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends he forcibly married, went into debt, had a baby, bought a car, and was very immature. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 his post-service achievements as evidenced by his steady employment, earning a bachelor’s degree, and enrollment in graduate school warrant consideration for an upgrade. 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 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

Similar Decisions

NAVY | DRB | 2005_Navy | ND0500137

Original file (ND0500137.rtf) Auto-classification: Denied

The Applicant requested the characterization of service received at the time of discharge be changed to honorable. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.
NAVY | DRB | 2006_Navy | ND0600206

Original file (ND0600206.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant implies, through the documentation submitted, that he would like his discharge changed on the basis of equity due to post-service conduct. The names, and votes of the members of the 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
NAVY | DRB | 2005_Navy | ND0501504

Original file (ND0501504.rtf) Auto-classification: Denied

Charge IV: Violation of UCMJ, Article 92: Specification 1: In that Lieutenant Junior Grade S_ J. D_(Applicant), U.S. Navy, USS STETHEM, on active duty, having knowledge of a lawful order issued by Commanding Officer, USS STETHEM, to wit: NONPUNITIVE LETTER OF CAUTION, dated December 02, 2002, an order which it was her duty to obey, did, on or about Dec 03, 2002, fail to obey the same by wrongfully continuing a personal relationship with GM2 R_ D. M_. Specification 2: In that Lieutenant...
NAVY | DRB | 1999_Navy | ND99-00098

Original file (ND99-00098.rtf) Auto-classification: Denied

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 971030 with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense (A). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).The applicant desires to upgrade his discharge in order to obtain Montgomery GI Bill...
NAVY | DRB | 2002_Navy | ND02-00196

Original file (ND02-00196.rtf) Auto-classification: Denied

ND02-00196 Applicant’s Request The application for discharge review, received 020102, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the...
NAVY | DRB | 2010_Navy | ND1001011

Original file (ND1001011.rtf) Auto-classification: Denied

Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...
NAVY | DRB | 2009_Navy | ND0900381

Original file (ND0900381.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...
NAVY | DRB | 1999_Navy | ND99-00739

Original file (ND99-00739.rtf) Auto-classification: Denied

No indication of appeal in the record.Retention Warning from USS PREBLE (DDG 46): Advised of deficiency (Your conviction of UCMJ, Article 107: False official statement, Article 123: Forgery, and Article 134: False official pass offenses), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board...
NAVY | DRB | 2007_Navy | ND0700030

Original file (ND0700030.rtf) Auto-classification: Denied

Elements of Discharge: [INVOLUNTARY] Date Notified:20040114Reason for Discharge Least Favorable Characterization Authorized: Date Applicant Responded to Notification: 20040114Rights Elected at Notification:Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date)Administrative Board GCMCA Review Commanding Officer Recommendation (date): (20040116)Separation Authority (date):COMMANDER, CARRIER GROUP SIX (20040124)Reason for discharge directed:Characterization directed:Date...
NAVY | DRB | 2005_Navy | ND0500253

Original file (ND0500253.rtf) Auto-classification: Denied

The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Sentence: Forfeiture of $50.00 per month for 1 month, confinement for 30 days, reduced to E-1.CA action 030306: Sentence approved and ordered executed.030420: Review of Summary court-martial: SJA recommends approval of charge I and the specification thereunder, disapproval of charge II and the specifications thereunder, but approval of the lesser included offense of missing...

Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300174

Similar Decisions