Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700199
Original file (ND0700199.rtf) Auto-classification: Denied
ex-SA, USN
ND07-00199
Current Discharge and Applicant’s Request
Application Received: 20061207   Characterization Received: GENERAL
Narrative Reason: MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 1910-142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Desire to re-enlist
                           2. Discharge based on contract terms, not misconduct

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall ENTRY LEVEL PERFORMANCE AND CONDUCT .
Date: 20 070920                             Location: Washington D.C.

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). The Board could not respond to this issue because the Applicant’s meaning is unclear. The Board found that the Applicant committed an offense which met the definition of “serious” for the purposes of administrative separation, was notified of the proposed separation, acknowledged his understanding and election of rights in response, and was separated by competent authority for misconduct due to commission of a serious offense.

Issue 3 (Equity). While not raised by the Applicant, the Board determined that his discharge was inequitable because, at the time of issuance, it was inconsistent with standards of discipline in the military service of which the Applicant was a member. Simply put, the Board determined that S ailors, while appropriately subject to discipline for the type of offense the Applicant committed, are not normally discharged for a single incident of such an offense. It appeared to the Board from the record that the Applicant committ ed a single offense of consuming alcohol, which was wrongful for two reasons: he was underage at the time and, even if he had been of age, he did s o in an unauthorized location. In addition, this same behavior, regardless of whether or not punished, constituted grounds for disenrollment from school. Although not explicitly contained in the record, the Board concluded that the Applicant’s disenrollment from his school was likely the primary factor in the discharge decision rather than a determination that the single offense warranted separation. As the incident occurred within the first 3 months of the Applicant’s service, the Board further determined that an Entry Level Separation was appropriate. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his less than 5 months in the military to warrant a change of discharge to honorable. The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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 Process and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20040514 - 20040609              Active:         
Period of Service Under Review:
 Date of Enlistment: 20040610      Years Contracted : ; Extension:                   Date of Discharge: 20041029
Length of Service : 00 Yrs 04 Mths 20 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 59          Highest Rank /Rate : SN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A             OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 200409 09 :        NJP -- Viol UCMJ Art. 92 – (2 specifications) Failure to obey other lawful written order (consumed alcohol in an unauthorized area and consuming alcohol underage .
         Awarded - RIR ( E-2 ); Restr for ( 14 d ays); Extra duties ( 14 days) .
2004091 6 :        Retention Warning for NJP of 20040909.

Discharge Process

 Date Notified:                                       20041013
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20041013
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 SEPARATON)
Separation Authority (date):     CO, NSHS, SAN DIEGO ( 20041015 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20041029

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
B. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 26 April 2005, Article 1910-154 (Previously 3630200), SEPARATION BY REASON OF ENTRY LEVEL PERFORMANCE AND CONDUCT.

C . 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 .

D . 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 , Failure to obey order or regulation .

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 | 2006_Navy | ND0601203

    Original file (ND0601203.rtf) Auto-classification: Denied

    Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation Undated : Psychiatric Clinic Questionnaire, Applicant admitted use of Cocaine 20041017. Elements of Discharge: [INVOLUNTARY] Date Notified:20041013Reason for Discharge due to: Least Favorable Characterization Authorized: Date Applicant Responded to Notification: 20041013Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)Commanding...

  • NAVY | DRB | 2008_Navy | ND0800901

    Original file (ND0800901.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 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...

  • NAVY | DRB | 2007_Navy | ND0700257

    Original file (ND0700257.rtf) Auto-classification: Denied

    The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one retention warning, two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 128 [Aggravated assault (3 Specifications)] and Article 134 (Disorderly conduct, drunkenness). Discharge Process Date Notified: 20050725Reason for Discharge:--Least Favorable Characterization: Date...

  • NAVY | DRB | 2010_Navy | ND1001241

    Original file (ND1001241.rtf) Auto-classification: 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 . ” 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...

  • NAVY | DRB | 2009_Navy | ND0900753

    Original file (ND0900753.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.Should the Applicant feel their post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to...

  • NAVY | DRB | 2007_Navy | ND0700438

    Original file (ND0700438.rtf) Auto-classification: Denied

    Date:20071129 Location:Washington D.CRepresentation: Discussion 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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. ...

  • NAVY | DRB | 2007_Navy | ND0700773

    Original file (ND0700773.rtf) Auto-classification: Denied

    The Applicant’s service was marred by one retention warnings, the award of two nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized Absence), Article 91 (Insubordinate conduct toward a petty officer), Article 92 ( Failure to obey a lawful order or regulation), Article 107 (False official statement), Article 111 (Drunken or reckless operation of a vehicle), Article 134 ( Drunkenness), Article 134 (False or unauthorized pass...

  • NAVY | DRB | 2009_Navy | ND0902207

    Original file (ND0902207.rtf) Auto-classification: Denied

    ” 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. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2015_Marine | MD1500068

    Original file (MD1500068.rtf) Auto-classification: Denied

    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PERSONALITY DISORDER. ” Additional Reviews : After a...

  • USMC | DRB | 2014_Marine | MD1400292

    Original file (MD1400292.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warning, for of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying superior commissioned officer, 1 specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey order or regulation, 2 specifications), Article 112 (Drunk on duty, 1 specification), Article 117 (Provoking speeches or gestures, 1...