Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301084

Original file (ND1301084.rtf) Auto-classification: Denied

ex-EM1, USN

Current Discharge and Applicant’s Request

Application Received: 20130422

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)        19971223 - 19980413     Active:          19980414 - 20010118

Period of Service Under Review:
Date of Current Enlistment: 20010119     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070614      Highest Rank/Rate: EM1
Length of Service: Year(s) Month(s) 27 D ay(s)
Education Level:        AFQT: 93
Evaluation M arks:         Performance: 3.8 ( 10 )     Behavior: 3.3 ( 10 )       OTA: 3.50

Awards and Decorations ( per DD 214):      HSM MUC

Period of UA : 20060816 - 20070510, 269 days

NJP :

- 20051213 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20051213 :      For the following deficiencies in your performance and/or conduct are identified: display of poor judgment, poor impulse control, personal irresponsibility , specifically, misconduct due to being unauthorized absence and failure to obey a lawful order resulting in CO’s NJP of 20051213.

NDRB Documentary Review Conducted (date):        20081124
NDRB Documentary Review Docket Number:   ND09 - 00943
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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

Applicant’s Issues

1.       The Applicant contends she was dealing with serious family issues and had previously exhibited honorable service .
2.       The Applicant contends her command did not provide adequate support or referrals to support programs .
3.       The Applicant contends her post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 3 1108             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 standards of equity and propriety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 1 specific ation) and Article 92 ( Failure to obey order or regulation , 2 specific ation s). Additionally, on 15 May 2007 charges were preferred against the Applicant for violation of UCMJ Article 86 (Absence without leave, 26 9 days). Pursuant to a signed statement of 15 May 2007, the Applicant: 1) requested an administrative discharge in lieu of tri a l by court-martial; 2) consulted with a retained civilian counsel and was fully advised of the implications of her request; 3) indicated she understood that if discharged Under Other Than Honorable Conditions, it might deprive her of virtually all veterans’ benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received may have a bearing; and 4) admitted to violating Article 86 a s alleged in the charge sheet. The Separation Authority accepted her request and ordered her to be discharged Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Decisional) ( ) . The Applicant contends she was dealing with serious family issues and had previously exhibited honorable service . The Applicant received an Honorable discharge for her first enlistment from April 1998 to January 2001. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During her second enlistment, t he record of evidence reflects the Applicant was unable to comply with the Navy Family Care Plan Policy after exhausting all of her options. The NDRB found the Applicant’s misconduct correlated to her inability to adhere to her Family Care Plan during her second enlistment . However, while the Applicant may feel that her family difficulties were a contributing factor to her misconduct, they do not mitigate her disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating she was unsuitable for further service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. The NDRB voted 3-2 to upgrade the characterization of service to General (Under Honorable Conditions) based on the quality of the member’s service having been honest and faithful but also having significant negative aspects of the member’s conduct outweighing the positive aspects of the member’s service record during her second enlistment . Partial relief granted. Full relief to Honorable was not granted due to the severity of the misconduct.

: (Decisional) ( ) . The Applicant contends her command did not provide adequate support or referrals to support programs. The evidence of record clearly and unquestionably indicated that the Applicant’s command actively work ed with her and provid ed all available assistance based upon what was then known about the Applicant’s situation . Relief denied.

: (Decisional) ( ) . The Applicant contends her post-service conduct warrants consideration for an upgrade. 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 provided substantial post - service documentation , including a personal statement, evidence of financial stability and continuous employment, her children’s educational and behavioral records, and child welfare documentation. The Applicant provided ample 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 majority of the NDRB determined the documentation submitted by the Applicant does demonstrate that i n-service misconduct was an aberration related to ongoing family hardship and voted 3-2 to upgrade the characterization of service to General (Under Honorable Conditions) . Partial relief granted. Full relief to Honorable was not granted due to the severity of the misconduct.

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 the discharge was proper but not equitable. Therefore, the awarded characterization of service shall but the narrative reason for separation shall remain . The Applicant is not eligible for further review by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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)(b), 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 .

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 | ND1301084

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