Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1300982

Original file (ND1300982.rtf) Auto-classification: Denied

ex-LSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20130328

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)        20080918 - 20090426     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090427     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120731      Highest Rank/Rate: LSSN
Length of Service: Y ear s M onth s 05 D a ys
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.08

Awards and Decorations ( per DD 214):      Pistol

NJP :

- 2011 0513 :      Article (Absence without leave)
         Awarded: Suspended:

- 20110930 :      Article (Absence without leave)
         Article (Missing movement)
         Awarded: Suspended:

S CM :             CC:               Retention Warning Counseling :

SPCM:

- 20111201 :      Article (Absence without leave)
         Specification 1: 20110801 - 20110812 , 12 days
         Specification 2: 20110814 - 20110914 , 32 days
         Specification 3: 20111001 - 20111003 , 3 days
         Specification 4: 20111007 - 20111011 , 5 days
         Article (Missing movement)
         S pecification 1: On 20110801
         Specification 2: On 20110616
         Article (General A rticle)
         Specification 1: B reaking restriction on 20111001
         Specification 2: B reaking restriction on 20111007
         Sentence : CONF 67 days (20111011-20111130, 51 days)
         Awarded: Suspended:

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 19 December 2007 until Present, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. 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 suffered from depression , received no help from a counselor, and felt he had no other options.

Decision

Date : 20 1 3 1121 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 NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Articl e 86 ( Absence without leave, 2 specifications) and Article 87 ( Missing movement) and for of the UCMJ: Article 86 ( Absence without leave, 4 specifications ) , Article 87 (Missing movement, 2 specifications), and Article 134 (General A rticle, breaking restriction, 2 specifications) . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 01 December 2011. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial award ed the Applicant a Bad Conduct D ischarge, reduction in rate to pay grade E-1, forfeiture of $274 pay per month for two months, and confinement for a period of 67 days. The C onvening A uthority approved the sentence as adjudged, but suspended all confinement in excess of time served (60 days) in accordance with the terms of a pretrial agreement. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 22 May 2012.

: (Decisional) ( ) . The Applicant contends he suffered from depression , received no help from a counselor, and felt he had no other options. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which th e discharge was awarded. Clemency 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 | 2013_Navy | ND1300683

Original file (ND1300683.rtf) Auto-classification: Denied

The Applicant a pre-service drug waiver prior to entering the Navy.Based on the Article 112a violation, processing for administrative separation is mandatory.The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review. ” Additional Reviews : After a document review has...
NAVY | DRB | 2012_Navy | ND1201261

Original file (ND1201261.rtf) Auto-classification: Denied

Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2009_Navy | ND0900555

Original file (ND0900555.rtf) Auto-classification: Denied

However, in reviewing the record of evidence, including medical records which support the Applicant’s diagnosis of PTSD, the NDRB was not convinced that the Applicant’s misconduct was a result of PTSD as evidenced by the fact that he had been awarded his first three NJPs for violations of Articles 86, 87 and 92, and received below average marks/comments on a performance evaluation 4 months prior to theattack. Summary: After a thorough review of the available evidence, to include the...
NAVY | DRB | 2013_Navy | ND1301190

Original file (ND1301190.pdf) Auto-classification: Denied

ND13-01190 RR DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT APPLICANT’S ISSUES 1. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 3 months, with 45 days suspended due to his pre-trial agreement. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2009_Navy | ND0902007

Original file (ND0902007.rtf) Auto-classification: Denied

The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency would be inappropriateSummary:After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found...
USMC | DRB | 2015_Marine | MD1500625

Original file (MD1500625.rtf) Auto-classification: Denied

Based on the offense(s) committed by the Applicant, command administratively processed for separation. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2006_Navy | ND0601034

Original file (ND0601034.rtf) Auto-classification: Denied

Wrongfully use cocaine on 19920925.19921024: Additional charge referred to special court-martial, to be tried together with charges referred on 19921007.19921029: Applicant to unauthorized absence 2100.30: Applicant missed movement.19921109: Applicant from unauthorized absence 0900 (11 days/surrendered).19921215: Special Court Martial [19921125 and 19921221]: Charge I: violation of the UCMJ, Article 86: Specification: Unauthorized absence 19920812 until on or about 19920923. Whenever a...
USMC | DRB | 2010_Marine | MD1002115

Original file (MD1002115.rtf) Auto-classification: Denied

” 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. 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), 2...
NAVY | DRB | 2009_Navy | ND0901934

Original file (ND0901934.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant believes his post-service conduct is worthy of clemency. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. ” Additional Reviews : After a document review has been conducted, former...
NAVY | DRB | 2007_Navy | ND0700198

Original file (ND0700198.rtf) Auto-classification: Denied

After a thorough review of the Applicant’s record, issue submitted, and post service accomplishments, the Board determined that the Applicant’s diagnosis did not provide grounds for misconduct, clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Whenever a member is being...

Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300982

Similar Decisions