Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700492
Original file (ND0700492.rtf) Auto-classification: Denied
ex-AOAN, USN
ND07-00492
Current Discharge and Applicant’s Request
Application Received: 20070307   Characterization Received:
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Employment enhancement
                           2. Personal problems
                           3. In service – Equity
                           4. Post service - Equity

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071101                                       Location: Washington D.C.

Discussion

 Issue(s) 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 Applicant contends his disciplinary problems were the result of stress caused by family situation and alcohol. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized.

Issue 3 ( ) : When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An 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. T he Applicant ’ s service was marred by 3 civil convictions and one nonjudicial punishment proceeding for violations of Articles 86 (unauthorized absence) and 91 (willfully disobeying a lawful order) of the UCMJ. The Applicant ’ s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

Issue 4 ( ): 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 should 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. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. Relief denied
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)      19870207 - 19870503              Active:          19870504 - 19930414
Period of Service Under Review:
 Date of Enlistment: 19930415               Years Contracted : ; Extension:          Date of Discharge: 19950331
Length of Service : 01 Yrs 11 Mths 16 D ys          Lost Time : Days UA: 88 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 30          Highest Rank /Rate : AO2
Evaluation marks (# of occasions):       Performance: 4.0 ( 1 )       Behavior: 4.0 ( 1 )                  OTA: 4.00
Awards and Decorations ( per DD 214): NDSM, KLM, BATTLE E” (2), SSDR (2), NUC, SASM W/3 STARS, FIRST GOOD CONDUCT AWARD ENDING 91MAY03

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

 19930415:        Reenlisted this date for a term of 6 years.

 19940513 :        NJP -- Viol UCMJ Art. 86 – Without authority absent himself from his organization 19940317, viol UCMJ Art. 91 – Willfully disobey a lawful order on or about 19940305 .
         Awarded - FOP ( $ 700.00 ) for ( 1 month); RIR suspended for 6 months .
19940928:        Civil Conviction: Violation of California Vehicle Code 23152 (a) (DUI) and 231152 (b) driving with a suspended license.
 Sentence: Pay fine of $1,1180.00, 365 days custody of sheriff, suspended for 5 years (24 months formal probation and 36 months summary probation), 48 hours custody of sheriff, drivers license restricted for 18 months.
19941025 :        Civil Conviction: V iolation of California Vehicle Code 23152 (b) (DUI) and 231152 (b) driving with a suspended license.
 Sentence: Serve 180 days custody (to be served beginning 19941206 at work furlough program for 60 days custody, consecutive with any other unexpired term, 60 days custody (stayed for the 5 year probationary term on case S 85780), pay a fine of $1,070.00, 48 hours in county jail, and complete prevent course.
19941221:        Civil Conviction: Violation of California Vehicle Code 23152 (a) (DUI) and 231152 (b) and 14601.2 (a).
 Sentence: Serve 365 days custody, pay a fine of $1,601.00, enroll in ARC (Level III), 5 years probation ordered not to drive any vehicle that is not equipped with a Interlock Device, 120 days work furlough program (report to no later than, 19950105) .
19950118:        Applicant to unauthorized absence at 0630 on 19950118.

19950131:        Applicant from unauthorized absence at 1600 on 19950131 (13 days/returned).
19950201:        Applicant in hands of civilian authorities.

Discharge Process

 Date Notified:                                       19950109
Reason for Discharge:     -
         -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19950112
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Commanding Officer Recommendation (date):        ( 19960213 )
Separation Authority (date):     BUPERS WASHINGTON DC ( 19950315 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19950331

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 9, effective 22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 91.


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 | 2005_Navy | ND0501368

    Original file (ND0501368.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Time Lost During This Period (days): Unauthorized absence: 6 days Confinement: None Age at Entry: 26 Years Contracted: 4 (12 month extension) Education Level: 12...

  • NAVY | DRB | 2009_Navy | ND0901405

    Original file (ND0901405.rtf) Auto-classification: Denied

    Based on a review of the Applicant's record of service, the Board has made the following determinations: 1) there was sufficient evidence to separate the Applicant due to civilian conviction, 2) the commanding officer acted within his authority in discharging the Applicant prior to the expiration of his enlistment, and 3) an upgrade was not warranted based on the seriousness of the offense committed by the Applicant and his failure to comply with the aftercare program for alcohol...

  • NAVY | DRB | 2004_Navy | ND04-00592

    Original file (ND04-00592.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Decision A documentary discharge review was conducted in Washington, D.C. on 20041001. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

  • NAVY | DRB | 2009_Navy | ND0900516

    Original file (ND0900516.rtf) Auto-classification: Denied

    The NDRB determined the characterization of service received, “General (Under 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.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, the NDRB found the discharge was proper and equitable with...

  • NAVY | DRB | 2014_Navy | ND1401101

    Original file (ND1401101.rtf) Auto-classification: Denied

    Based on the offense(s) committed by the Applicant, command administratively processed for separation. The record clearly indicates that the Administrative Board voted 3-0 to recommend the Applicant for separationfor both Pattern of Misconduct and a Civilian Conviction while voting 3-0 to recommend retention for the alleged Commission of a Serious Offense. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2014_Navy | ND1400582

    Original file (ND1400582.rtf) Auto-classification: Denied

    A review of his record revealed that his PTSD was from pre-service events and not as the result of a deployment in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).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...

  • NAVY | DRB | 2008_Navy | ND0801967

    Original file (ND0801967.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.Youth and immaturity and personal problems mitigated to his misconduct 2. ” 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. Regulations limit the NDRB’s review to a determination of the propriety...

  • USMC | DRB | 2012_Marine | MD1201650

    Original file (MD1201650.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’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 | 2012_Navy | ND1200834

    Original file (ND1200834.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...

  • NAVY | DRB | 2008_Navy | ND0801537

    Original file (ND0801537.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT (CIVILIAN CONVICTION).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. Based on the Applicant’s repeated poor choice of driving while under the influence of alcohol and his failure to reveal his first civil conviction, the Board determined an upgrade was not warranted.After a thorough review of the available...