Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301903

Original file (ND1301903.rtf) Auto-classification: Denied

ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received: 20130926

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge : M ILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20051031 - 20051121     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110311      Highest Rank/Rate: FC2
Length of Service: Y ear( s ) M onth( s ) 20 D a y ( s )
Education Level:        AFQT: 71
Evaluation M arks:         Performance: 3.2 ( 6 )      Behavior: 2.9 ( 7 )        OTA: 3.12

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20060322 :      Article (Failure to obey order or regulation , 2 specifications )
         Awarded: Suspended:

- 20081124 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20100601 :      Article (Failure to obey order or regulation)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060322 :       For underage drinking and failure to obey.

- 20101106 :       For failure to maintain an appropriate family care plan certificate.

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 :

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

Applicant’s Issues

1.       The Applicant contends his command told him he would keep his education benefits.
2 .        The Applicant contends his command told him he would receive an Honorable discharge .

Decision

Date : 20 1 4 0501             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 discharg e 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 proprie ty. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey orders or regulations , 4 specifications). The Applicant was an active duty Sailor married to an active duty Sailor and had one child who was in the care of his mother while he was deployed. Due to health problems, his mother was unable to care for the Applicant’s child, and he had no other long - term family care plan options available. Based on the Applicant’s inability to comply with the Family Care Plan, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived right s to consult with a qualified counsel and submit a written statement . The Applicant was not entitl ed to an administrative board.

Issue 1: (Nondecisional) The Applicant contends his command told him he would keep his education benefits. The U.S. Department of Veterans Affairs (VA) , not the Navy, determines eligibility for post-service benefits. 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 NDRB can grant relief. 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.

: (Decisional) ( ) . The Applicant contends his command told him he would receive an Honorable discharge. On 6 November 2010, the Applicant submitted a statement to his commanding officer stating that he was unable to comply with the Family Care Plan for his daughter. Also on 6 November 2010, the Applicant’s commanding officer notified the Applicant that he was processing him for administrative separation for Convenience of the Government - Parenthood. The notification contains the statement, “Least favorable characterization of service possible is General (Under Honorable Conditions).” The Applicant acknowledged and signed the notification of separation proceedings and waived his rights to consult with a qualified counsel and to submit a statement to the Separation Authority (Commander, Navy Personnel Command). On 16 November 2010, the Applicant’s commanding officer forwarded his recommendation to Commander, Navy Personnel Command that the Applicant be separated for Parenthood with a General (Under Honorable Conditions) characterization of service. On 9 February 2011, Commander, Navy Personnel Command directed the Applicant’s command (USS CHANCELLORSVILLE) to discharge the Applicant for Parenthood with a General (Under Honorable Conditions) characterization of service.

Per Naval Military Personnel Manual, (NAVPERS 15560C ) , Change 33, effective 4 August 2010 until Present, Article 1910-124, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PARENTHOOD , characterization of service upon discharge should be Honorable unless a General is warranted. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Honorable

characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. During the Applicant’s 5 years and 3 months of service, he received two retention warnings and was found guilty at three NJPs of violating numerous serious UCMJ offenses. Despite meeting the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), which typically results in an Under Other Than Honorable Conditions characterization of service, his command allowed him to continue to serve until he requested to be disc harged for Parenthood. After a complete review of the Applicant’s records and statement, the NDRB determined his separation process was proper, his discharge characterization of service was equitable, there were no administrative errors in the preparation of his DD Form 214, and the PS1 who said his discharge would be changed and he would retain his education benefits did not have the authority to make those promises. 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.

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C ) , Change 33, effective 4 August 2010 until Present, Article 1910-124, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PARENTHOOD.

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 .

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 | ND1301903

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