Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700152
Original file (ND0700152.rtf) Auto-classification: Denied
ex-ICFN, USN
ND07-00152
Current Discharge and Applicant’s Request
Application Received: 20061106   Characterization Received:
Narrative Reason: MISCONDUCT (SERIOUS OFFENSE) Authority: MILPERSMAN 1910-142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1 . Request characterization change for better employment opportunities
                          
Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .

Date: 20 070913 Location: Washington D.C. The Board found that

Discussion

 Issue 1 : ( ). While the record does not identify the underlying cause for misconduct , there is credible evidence in the record that the Applicant willfully committed misconduct which demonstrated he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on one occasion for violation s of the Uniform Code of Military Justice (UCMJ) Articles 86, 89, 91, and 128. Violation of UCMJ Article 89 (Disrespect toward superior commissioned officer), Article 91 (Insubordinate conduct toward a non-commissioned officer, and Article 128 (Assault upon a petty officer) are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.


Summary of Service

 Prior Service:
 Inactive: US N R (DEP)      20030623 - 20040601              Active:         
Period of Service Under Review:
 Date of Enlistment: 200406 22      Years Contracted : ; Extension:          Date of Discharge: 20060302
Length of Service : 01 Yrs 08 Mths 15 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 68          Highest Rank /Rate : IC3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A             OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL
Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20040622:        Enlists in Navy for 4 yrs with 2 year extension for AEF (Interior Communications Electrician)

20060224 :        CO's NJP -- Viol UCMJ Art. 86 - Unauthorized a bsence ; viol UCMJ Art . 89 - Disrespect toward a superior Commissio ned Officer; viol UCMJ Art. 91 - Insubordinate conduct toward a Non-Commissioned Officer; viol UCMJ Art. 128 – Assault upon a Petty Officer ). Awarded - FOP ( $750.00 ) for ( 2 months); RIR ( E-3 ); Restr for ( 45 days); Extra duties ( 45 days) .
Discharge Process

 Date Notified:                                       20060223
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20060224
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        N/A ( LOCAL SEPARATION )
Separation Authority (date):     COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, JACKSONVILLE ( 20060309 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20060309

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective
26 April 2005 until Present, 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 s 89, 91, and 128.





ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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 | 2007_Navy | ND0700394

    Original file (ND0700394.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “ 02JAN2000-04JAN2000 ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. Awarded - Restr for...

  • NAVY | DRB | 2007_Navy | ND0700416

    Original file (ND0700416.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP)20050408 - 20050728Active: Period of Service Under Review: Date of Enlistment: 20050729Years Contracted:; Extension: Date of Discharge:20060310Length of Service: 00 Yrs 07Mths12 DysLost Time:Days UA: Days Confined: Education...

  • NAVY | DRB | 2007_Navy | ND0700346

    Original file (ND0700346.rtf) Auto-classification: Denied

    The Board determined that an upgrade to honorable would be inappropriate and also determined that the narrative reason was appropriate.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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge...

  • NAVY | DRB | 2007_Navy | ND0700447

    Original file (ND0700447.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of service. After a thorough review of the available evidence, to include the applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative errors on the...

  • NAVY | DRB | 2007_Navy | ND0700763

    Original file (ND0700763.rtf) Auto-classification: Denied

    Each violation of UCMJ Article 91 and 92constitutes the “commission of a serious offense” which forms the basis for the Applicant’s discharge and is punishable by a dishonorable discharge and up to three years of imprisonment for each specification. Discharge Process Date Notified: 20060206Reason for Discharge:-Least Favorable Characterization: Date Applicant Responded to Notification:20060206 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit...

  • NAVY | DRB | 2007_Navy | ND0700138

    Original file (ND0700138.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT. Date Applicant Responded to Notification:NOT FOUND IN RECORD Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): Separation Authority (date): NOT FOUND IN RECORDReason for discharge directed: Characterization directed: Date Applicant Discharged: 20021002 Types of Documents Submitted by Applicant and Considered...

  • NAVY | DRB | 2007_Navy | ND0700253

    Original file (ND0700253.rtf) Auto-classification: Denied

    Date Applicant Responded to Notification:19910515 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): (19910603) Separation Authority (date): BUPERS WASHINGTON DC (19910617)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 19920416 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service:...

  • USMC | DRB | 2007_Marine | MD0700712

    Original file (MD0700712.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 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 960725 UNTIL 000816 ” “ NONE”The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be...

  • USMC | DRB | 2007_Marine | MD0700657

    Original file (MD0700657.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)19960221 - 19960225Active: Period of Service Under Review: Date of Enlistment: 19960226Years Contracted:; Extension: Date of Discharge:19970213Length of Service: 00 Yrs 11Mths18 DysLost Time:Days UA: Days Confined: Education...

  • NAVY | DRB | 2008_Navy | ND0801011

    Original file (ND0801011.rtf) Auto-classification: Denied

    The Applicant should be aware 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 mitigates the reason for the characterization of discharge. 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, Articles 89, 90,...