Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700230
Original file (ND0700230.rtf) Auto-classification: Denied
ex-EMFN, USN
ND07-00230
Current Discharge and Applicant’s Request
Application Received: 20061213   Characterization Received: OTHER THAN HONORABLE
Narrative Reason: PATTERN OF MISCONDUCT Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. One Mistake in Service

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 070927 Location:         Washington D.C. The Board found that

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: ( ). T he Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant used illegal drugs. The evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A under other than 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred one r etention w arning, three n onjuducial p unishments (NJP) for a violation of UCMJ Article 86 ( Unauthorized absence), Article 90 (Failure to obey a lawful general regulation), Article 134 (Disloyal statement), and Article 112a ( Wrongful use of a controlled substance ) . A v iolation of Article s 90, 134, and 112a are considered serious offens es for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to General (Under Honorable Conditions) or H onorable would be inappropriate .
Summary of Service

 Prior Service:
 Inactive: US N R (DEP)      19910712 - 19920105              Active:         
Period of Service Under Review:
 Date of Enlistment: 19920106      Years Contracted : ; Extension: 29 MONTHS         Date of Discharge: 19980226
Length of Service : 06 Yrs 01 Mths 20 D ys          Lost Time : Days UA: 1 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 89          Highest Rank /Rate : EM3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): MERITORIOUS UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL



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

 19931230 :        CO's NJP -- Viol UCMJ Art. 90 – Failure to obey a lawful general regulation; viol UCMJ Art. 134 – Disloyal statement . Awarded - RIR ( E-3 ); Restr for ( 14 days); Extra duties ( 14 days) .
19940202:        Removed from Nuclear NEC by BUPERS 241.
19950107:        Applicant to unauthorized absence at 0745 on 19950107.

19950107:        Applicant from unauthorized absence at 0830 on 19950107 (45mins/surrendered).

 19950316 :        Applicant to unauthorized absence at 0 645 on 19950316 .

 19950316 :        Applicant from unauthorized absence at 0845 on 19950316 ( 2hrs /surrendered).
19950605:        Applicant to unauthorized absence at 0645 on 19950605.

1995060 5 :        Applicant from unauthorized absence at 0730 on 1995060 5 (45mins/surrendered).
199 60102 :        Applicant to unauthorized absence at 0 730 on 199 60102 .

199 60103 :        Applicant from unauthorized absence at 0 8 30 on 199 60103 ( 1day /surrendered).
19960629 :        Retention Warning for ( Misconduct as evidenced by your Non-judicial Punishment on 19931229, for a violation of the UCMJ, Article 90: Failure to obey a lawful general regulation, and Article 134: Disloyal statement, and your unauthorized absences on 19950107, 19950316, 19950605, and 19960102 ) .
19970619 :        CO's NJP -- Viol UCMJ Art. 86 – (2 specs), Spec 1: Unauthorized absence from unit 0700-1400, 19970602 (7hrs); Spec 2: Unauthorized absence from unit 0200, 19970604 until 0200, 19970605 (1day) .
          Awarded - FOP ($ 200.00 ) for ( 2 months) suspended for 3 months ; RIR ( E-3 ) suspended for 3 months ; Restr for ( 30 days) 10 days suspended for 3 months ; Extra duties ( 30 days) suspended for 3 months .

19980128 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 19980120 , tested positive for ( Tetrahydrocannabinol ).
19980130:        CO's NJP -- Viol UCMJ Art. 112a – Wrongfully use marijuana on or about 19980116. Awarded - FOP ($615.00) for (2months); RIR (E-3); Restr for (45days); Extra duties (45days).

Discharge Process

 Date Notified:                                       19980130
Reason for Discharge:     -
         -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19980130
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 19980206 )
Separation Authority (date):     COMCARGRU TWO ( 19980219 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19980226

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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), 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 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 90, 134 and 112a.



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 | ND0701072

    Original file (ND0701072.rtf) Auto-classification: Denied

    Date: 20080117Location:Washington D.C Representation: Discussion : 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. Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by one retention warning, self admission to using drugs on more than one occasion,...

  • NAVY | DRB | 2007_Navy | ND0700133

    Original file (ND0700133.rtf) Auto-classification: Denied

    86 – [Unauthorized absence (2 specs)]; Viol of UCMJ Art 107 – (False official statement). ” 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. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.

  • NAVY | DRB | 2007_Navy | ND0700214

    Original file (ND0700214.rtf) Auto-classification: Denied

    The Applicant’s service was marred by four nonjudicial punishments and two retention warning for violations of UCMJ Articles 86 (unauthorized absence, 6 specifications), 87 (missing movement), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct, 2 specifications), 92 (failure to obey, 3 specifications), 107 (false official statements), 111 (drunk operation of a motor vehicle), 112 (drunk on watch), and 134 (disorderly conduct and communicating a threat). ...

  • NAVY | DRB | 2007_Navy | ND0700200

    Original file (ND0700200.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. Date Applicant Responded to Notification:19930803 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): (19930811) Separation Authority (date): BUPERS WASHINGTON DC (19930817)Reason for discharge directed: - Characterization directed: Date Applicant...

  • NAVY | DRB | 2007_Navy | ND0700367

    Original file (ND0700367.rtf) Auto-classification: Denied

    The Applicant’s service was marred by 2 retention warnings, 6 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct towards a master chief petty officer), 92 (failure to obey written regulation), 95 (resistance), 112 (drunk on duty), 112a (wrongful use of a controlled substance) and 134 (unlawful entry) of the UCMJ. The Applicant’s conduct, which forms the primary basis...

  • NAVY | DRB | 2007_Navy | ND0700756

    Original file (ND0700756.rtf) Auto-classification: Denied

    The Applicant’s record of service was marred by one retention warning, two NJPs and two Summary Court-Martials (SCM) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 87 (Missing movement),Article 90 (Willfully disobeying a commissioned officer), Article 92 (Dereliction of duty), Article 107 (False official statement), Article 134 (Drunkenness, Incapacitated for duty), and Article 134 (Breaking restriction). The Applicant contends that...

  • USMC | DRB | 2007_Marine | MD0700453

    Original file (MD0700453.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense that he committed. 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...

  • NAVY | DRB | 2007_Navy | ND0700212

    Original file (ND0700212.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found no evidence that the Applicant’s discharge was fair.When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable...

  • USMC | DRB | 2007_Marine | MD0701018

    Original file (MD0701018.rtf) Auto-classification: Denied

    Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by three retention warnings and four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey an order), Article 134 (Soliciting another to commit an offense), and Article 134 (Altering a base pass). Medical/Service Record Entries Related to...

  • NAVY | DRB | 2007_Navy | ND0700338

    Original file (ND0700338.rtf) Auto-classification: Denied

    Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 19941015 Applicant to unauthorized absence this date.19941025: Applicant from unauthorized absence this date (10 days/surrendered).19941127: NJP -- Viol UCMJ Art. Discharge Process Date Notified: Reason for Discharge:Least Favorable Characterization: Date Applicant Responded to Notification: Date Applicant Discharged: 19991001 Types of Documents Submitted by Applicant and Considered By BoardRelated...