Upgrade.Vet

NAVY | DRB | 2015_Navy | ND1500707

Original file (ND1500707.rtf) Auto-classification: Denied

ex-CTR2, USN

Current Discharge and Applicant’s Request

Application Received: 200219

Characterization of Service Received: (per DD 214) UNDER HONORABLE CONDITIONS (GENERAL)

Narrative Reason for Discharge: (per DD 214) PATTERN OF MISCONDUCT
Reenlistment Code: RE-4
Authority for Discharge: (per DD 214) MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20090212 - 20090517 COG         Active: NONE

Period of Service Under Review:

Date of Current Enlistment: 20090518    Age at Enlistment: 29
Period of Enlistment: 4 Years 12 MONTHS Extension
Date of Discharge: 20130118     Highest Rank/Rate: CTR2
Length of Service: 03 Year(s) 08 Month(s) 01 Day(s)
Education Level: 16     AFQT: 70
Evaluation Marks:        Performance: 2.4 (5)     Behavior: 3.2 (6)       OTA: 2.82

Awards and Decorations (per DD 214):     NDSM

Periods of UA/CONF: NONE

NJP: 2

- 20121103:      Article 92 (Failure to obey order or regulation; O/A 20121024, SMN failed to complete EMI.)
         Awarded: FOP RESTR EPD Suspended: NONE
         [Provided to NDRB by USS MCFAUL on 20150624]

- 20121213:      Article 92 (Failure to obey order or regulation; O/A 20121206, SMN failed to complete EMI.)
         Awarded: FOP RESTR EPD Suspended: NONE
         [Provided to NDRB by USS MCFAUL on 20150624]

SCM: NONE

SPCM: NONE

CC: NONE

Retention Warning Counseling: NFIR

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:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

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

Applicant’s Issues

1. The Applicant contends that his narrative reason for discharge should be medical for sleep apnea.
2. The Applicant contends that his discharge characterization should be upgraded to Honorable due to his sleep apnea.

Decision

Date: 20150709 DOCUMENTARY REVIEW Location: Washington D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL) .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT - PATTERN OF MISCONDUCT .

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 evidence submitted by the Applicant. The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

Issue 1: (Nondecisional) The Applicant contends that his narrative reason for discharge should be medical for sleep apnea. 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. The Applicant can petition the BCNR for a determination of whether the medical condition or underlying diagnosis interfered significantly with the applicant’s ability to carry out the duties of their office, grade, rank or rating. The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.secnav.navy.mil/mra/bcnr/.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his discharge characterization was inequitable due to his sleep apnea and should be upgraded to Honorable. The Applicant provided copies of medical records including a post-service sleep study as well as correspondence from the BCNR and his U.S. Congressman. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The Applicant’s record documents several NJP’s for repeatedly not completing extra military instruction and a special evaluation for substandard performance. 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. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT - PATTERN OF MISCONDUCT. 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.

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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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 | 2015_Navy | ND1500707

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