Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400102

Original file (ND1400102.rtf) Auto-classification: Denied

ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20131025

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20000131 - 20000327     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000328     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030107      Highest Rank/Rate: FN
Length of Service: Y ear( s ) M onth( s ) 11 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA : 20000815-20001024, 70 days; 20001031-20010215, 105 days; 20010402-2001529, 58 days
CONF: 20010725-20010805, 11 days

NJP :     S CM :             CC:      Retention Warning Counseling :

SPCM:

- 20010627 :       Article 86 (Absence without leave , 3 specifications )
         Specification 1: 20000815-20001025, 70 days
         Specification 2: 20001031-20010216, 105 days
         Specification 3 : 20010402-20010530, 58 days
         Article 87 (Missing movement , 2 specifications )
         Sentence : 74 days

CIVIL ARREST:

- 20010530 :       Charges: Military desertion [Extracted from the Record of Trial]

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 seeks to reenlist .
2.       The Applicant contends he made an error in judgment.
3.       The Applicant contends his post-service conduct warrants clemency.

Decision

Date : 20 1 4 0417             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. 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 one Special Court-Martial for violations of the UCMJ: Article 86 (Absence without leave , 3 specifications : 70 days , 105 days , and 58 days ) and Article 87 (Missing movement , 2 specifications ). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 27 June 2001 . 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 awarded the Applicant a Bad Conduct D ischarge and confinement for 74 days.

: (Nondecisional) The Applicant seeks to reenlist. 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.

Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he made an error in judgment. The Applicant’s record shows he made multiple errors in judgment that resulted in a Special Court-Martial conviction. The NDRB found his errors in judgment did not warrant clemency. Relief denied.

Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants clemency. 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 clemency was not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the record of trial by Special Court-Martial, and discharge process, the Board found that clemency was not warranted. Therefore, the awarded characterization of service shall remain BAD CONDUCT and the narrative reason for separation shall remain COURT-MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, 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.

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 | 2008_Navy | ND0801287

Original file (ND0801287.rtf) Auto-classification: Denied

The Applicant contends his characterization of service should be upgraded because his discharge was unjust and lacking evidence. However, there is no evidence in the records available for review, nor has the Applicant produced any evidence or medical documentation to support the contention he was misdiagnosed by military medical personnel. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is...
USMC | DRB | 2010_Marine | MD1002348

Original file (MD1002348.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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 NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2013_Marine | MD1301750

Original file (MD1301750.rtf) Auto-classification: Denied

Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and record entries, 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 eligible for a...
NAVY | DRB | 2007_Navy | ND0700196

Original file (ND0700196.rtf) Auto-classification: Denied

The Applicant’s service was marred by one nonjudicial punishment proceeding for violation of Article 112a (Wrongful use of a controlled substance) of the UCMJ. Date Applicant Responded to Notification:20010328 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): (20010329) Separation Authority (date): CHIEF OF NAVAL EDUCATION AND TRAINING (20010329)Reason for...
USMC | DRB | 2007_Marine | MD0700609

Original file (MD0700609.rtf) Auto-classification: Denied

After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.In reviewing discharges, the Board 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. 02-275Discharged: 20020426 Types of Documents...
USMC | DRB | 2012_Marine | MD1200891

Original file (MD1200891.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been...
NAVY | DRB | 2009_Navy | ND0902133

Original file (ND0902133.rtf) Auto-classification: Denied

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. Documentation to help 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...
USMC | DRB | 2011_Marine | MD1100767

Original file (MD1100767.rtf) Auto-classification: Denied

Additionally, the Applicant submitted no documentation to warrant granting clemency. Clemency not warranted. ” 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.
USMC | DRB | 2007_Marine | MD0700479

Original file (MD0700479.rtf) Auto-classification: Denied

SEPARATION IN LIEU OF TRIALDischarge Process Charge(s) Preferred: 20001109Charge(s) and Specification(s): Article: 86; from 20000515 - 20001031 Date Applicant Submitted SILT request: 20001129 Consulted with or Waived Counsel: YES Acknowledged Understanding Elements: YES Acknowledged Guilt to: Article86 BCD/DD authorized for offense(s) YES Acknowledged Consequences of OTH: YES Type of Characterization Requested: GENERAL (UNDER HONORABLE CONDITIONS)Commanding Officer Recommendation...
NAVY | DRB | 2011_Navy | ND1100145

Original file (ND1100145.rtf) Auto-classification: Denied

Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter),the Board completed a thorough review of the available records to determine whether discharge and the discharge process met the pertinent standards of equity and propriety. A request for a waiver can be...

Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1400102

Similar Decisions