Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400120

Original file (ND1400120.rtf) Auto-classification: Denied

ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20131107

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)        19880711 - 19880824     Active:          19880825 - 19910530
                                             19910531 - 19970203
                                             19970204 - 20040802
Period of Service Under Review:
Date of Current Enlistment: 20040803     Age at Enlistment: 39
Period of E nlistment : Years Extension
Date of Discharge: 20070617      Highest Rank/Rate: OS1
Length of Service: Y ear( s ) M onth( s ) 23 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.2 ( 6 )      Behavior: 2.5 ( 6 )        OTA: 2.46

Awards and Decorations ( per DD 214):      (5) (5) NRSR (3) NUC JMUA
Periods of UA :

NJP :     S CM :             CC:      Retention Warning Counseling :

SPCM:

- 20060518 :       Art icle (Failure to obey order or regulation , 3 specifications )
         Specification 1: Sexually harassing OS2
         Specification 2: Wrongfully engaging in sexual intercourse with OS2
         Specification 3: Wrongfully engaging in unduly familiar relationship with OS2
         Sentence : (20060518-20060611, 25 days) RIR E-5

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880825 UNTIL 040802 ”
         “ 06MAY18 TO 06JUN11 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 92 .

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

Applicant’s Issues

1.        The Applicant contends he was falsely accused and convicted.
2.       The Applicant contends he did not deserve to be discharged after 18 years of good conduct .
3 .        The Applicant contends there was a conflict of interest because an administrative board member also worked for his commanding officer.

Decision

Date : 20140527             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. The Applicant’s record of service in his current enlistment included for of the UCMJ: Article 92 (Fail ure to obey order or regulation, 3 specifications : Specification 1: Sexually harassing OS2 , Specification 2: Wrongfully engaging in sexual intercourse with OS2 , and Specification 3: Wrongfully engaging in unduly familiar relationship with OS2). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed misconduct and recommended separation with a General (Under Honorable Conditions) characterization.

: (Decisional) ( ) . The Applicant contends he was falsely accused and convicted. The record clearly shows the Applicant was convicted at a Special Court-Martial. R elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. Therefore, the NDRB determined the Applicant’s contention does not form a basis for relief . Relief denied.

: (Decisional) ( ) . The Applicant contends he did not deserve to be discharged after 18 years of good conduct . The Applicant received Honorable characterizations of service for three previous enlistments from August 1988 to August 2004. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, the Applicant was found guilty at a Special Court-Martial , a nd an administrative board determined his misconduct warranted separation. Sexually harassing and engaging in sexual intercourse with subordinates is distinctly counter to good order and discipline and demonstrated that the Applicant was unsuitable for further service. Relief denied.

: (Decisional) ( ) . The Applicant contends there was a conflict of interest because an administrative board member also worked for his commanding officer. This is not considered a conflict of interest and is common practice for administrative boards. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. Based on the Applicant’s record , to include his Special Court-Martial c onviction, the NDRB concluded that the Applicant is extremely fortunate that he did not receive a punitive Bad Conduct D ischarge or an administrative U nder Other Than Honorable Conditions discharge. 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 | 2011_Navy | ND1101702

Original file (ND1101702.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade in his RE Code in order to re-enter the Navy as an OS2. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...
USMC | DRB | 2009_Marine | MD0902582

Original file (MD0902582.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: Pertinent Regulation/Law A. Paragraph 6210,...
NAVY | DRB | 2001_Navy | ND01-00675

Original file (ND01-00675.rtf) Auto-classification: Denied

ND01-00675 Applicant’s Request The application for discharge review, received 010423, requested that the characterization of service on the discharge be changed to honorable. THE CO OF NAS JAX DID NOT AGREE WITH THE ADMIN SEPARATION BOARD DECISION AND RECOMMENDED DISCHARGE WHICH WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY. 970609: Commanding officer recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense...
NAVY | DRB | 2013_Navy | ND1300728

Original file (ND1300728.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...
USMC | DRB | 2013_Marine | MD1301070

Original file (MD1301070.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 is not eligible for further reviews by the NDRB. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...
NAVY | DRB | 2010_Navy | ND1001478

Original file (ND1001478.rtf) Auto-classification: Denied

The Applicant’s record of service did include one non-judicial punishment for violations of the UCMJ: Article 92 (Failure to obey order or regulation, 1 specification) and Article 133 (Conduct unbecoming an officer, 1 specification).Based on the offenses committed by the Applicant, her command administratively processed her for separation.The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to consult with a qualified...
USMC | DRB | 2011_Marine | MD1100571

Original file (MD1100571.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. ” 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 | 2009_Navy | ND0900475

Original file (ND0900475.rtf) Auto-classification: Denied

Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP) NFIR Active: 20010514 - 20030508 To accept commission Period of Service Under Review: Date of Appointment: 20030509Age at Enlistment: Period of Appointment: Indefinite Date of Discharge: 20080430Highest Rank: LTLength of Service: Year(s) Month(s) 22 Day(s) Education Level: Fitness Reports: Awards and Decorations (per DD 214): Pistol (2) JSCM Periods of UA/CONF:...
USMC | DRB | 2010_Marine | MD1000085

Original file (MD1000085.rtf) Auto-classification: Denied

Additionally, the Naval Clemency and Parole Board reviewed the case and determined that no clemency was warranted. The NDRB conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, the transcript of the Special Court-Martial proceeding, and the overall discharge process. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...
NAVY | DRB | 2004_Navy | ND04-00642

Original file (ND04-00642.rtf) Auto-classification: Denied

_________________________________________________________________ In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. Specification 4: Wrongfully harassing and using abusive language toward prospect T_ F_ on or about Jul 94.Specification 5: Wrongfully engaging in physical contact with prospect T_ F_ by...

Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1400120

Similar Decisions