Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700493
Original file (ND0700493.rtf) Auto-classification: Denied
ex-FN, USN
ND07-00493
Current Discharge and Applicant’s Request
Application Received: 20070306   Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT MARTIAL Authority: MILPERSMAN 1910-106

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Request change of RE Code to reenlist in Army
                           2. Post service

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL       .
Date: 20 071115       Location: Washingto n D.C R epresentation :

Discussion

 Issue 1 : The Applicant admits that he went on an unauthorized absence to find better employment and is now requesting to have his reenlistment code changed so that he can enlist in the Army. He conte nds that he’s changed a lot and wants a better life for his family. which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding Reenlistment/RE-code for additional information .

Issue 2 ( ): The Board found that the Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant was afforded the appropriate due process during the processing of his case. The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial after consulting with counsel, who fully advised him of the implications of his request. Further, the Applicant's misconduct is clearly documented. The NDRB found that this misconduct outweighed any mitigating and extenuating factors contained in the Applicant's record. Aggravating factors noted by the Board included a formal counseling entry for poor military perfo rmance as demonstrated by drinking alcohol while on a phase I liberty status , 10 days unauthorized absence and 322 days of unauthorized absence . An upgrade of the Applicant's discharge is not warranted .

The following is provided for the edification of the Applicant. 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 being discharged from the Navy . 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 includ e proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant has not provided any documentation for the Board to consider. Relief on this basis is not possible at this time.
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 tha t

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20030926 - 20040216              Active:         
Period of Service Under Review:
 Date of Enlistment: 20040217      Years Contracted : ; Extension:                   Date of Discharge: 20060207
Length of Service : 01 Yrs 01 Mths 03 D ys          Lost Time : Days UA: 332 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 32          Highest Rank /Rate : FN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): NDSM, GWOTSM, FLAG LOC

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

 20040514:        Applicant to unauthorized absence at 2145 on 20040514.

20040524:        Applicant from unauthorized absence at 2100 on 20040524 (10 days/surrendered).
20040602 :        NJP -- Viol UCMJ Art. 92 – Wrongfully drinking alcoholic beverages while on phase I liberty; viol UCMJ Art. 86 – Unauthorized absence.
         Awarded - FOP ( $ 312.00 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days) .
20040602:        Retention Warning for poor military performance, to wit: Drinking in a phase one liberty status, unauthorized absence (10 days).
20050217:        Applicant to unauthorized absence at 0700 on 20050217.

 20050319:        Applicant declared a deserter.

 20060105:        Applicant from unauthorized absence at 1640 on 20060105 (322) days/surrendered).

Discharge Process

 Charge(s) Preferred: NOT FOUND IN RECORD
Charge(s) and Specification(s):
         Article       :      
         Article       :      

Date Applicant Submitted SILT request:            NOT FOUND IN RECORD
         Consulted with or Waived Counsel:                
         Acknowledged Understanding Elements:    
         Acknowledged Guilt to:                     Article(s)      
                  BCD/DD authorized for offense(s)        
         Acknowledged Consequences of OTH:       
         Type of Characterization Requested:      NOT FOUND IN RECORD

Commanding Officer Recommendation (date):       
Separation Authority (date):                       NOT FOUND IN RECORD
         Reason for Discharge directed:           
         Characterization directed:                        
Date Applicant Discharged :                         20060207


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 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL .

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 .




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

  • USMC | DRB | 2008_Marine | MD0801906

    Original file (MD0801906.rtf) Auto-classification: Denied

    The NDRB determined the awarded discharge characterization was appropriate for the numerous violations the Applicant committed and an upgrade based on back pain as a mitigating factor would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, 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...

  • USMC | DRB | 2009_Marine | MD0901369

    Original file (MD0901369.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Wants to attend college. Marines who do not achieve these standards should not receive an Honorable discharge.The Applicant’s Pro/Con marks were 3.9/3.5, which do not the minimum acceptable standards.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...

  • NAVY | DRB | 2007_Navy | ND0700472

    Original file (ND0700472.rtf) Auto-classification: Denied

    With regard to the Applicant’s request to have his narrative reason for discharge changed the NDRB will change the reason for discharge if such a change is warranted. The Naval Military Personnel Manual 1910-142, for the period in question directs that Block 28 contain the word “MISCONDUCT” when separating under these conditions.To change the narrative reason for separation would be inappropriate.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs...

  • USMC | DRB | 2010_Marine | MD1001962

    Original file (MD1001962.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Non-decisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to enhance employment opportunities. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency...

  • NAVY | DRB | 2011_Navy | ND1101454

    Original file (ND1101454.rtf) Auto-classification: Denied

    During the NDRB’s review of the Applicant’s record of service and discharge process, the NDRB identified an inequity in the Applicant’s characterization of service and determined that the Applicant warrants anupgrade on the basis of the Enlisted Performance Evaluation System. Relief granted.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...

  • NAVY | DRB | 2008_Navy | ND0801321

    Original file (ND0801321.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.Besides the personal statement provided on the DD Form-293, the Applicant failed to provide any additional statements and evidence of in-service and post service accomplishments. The Board determined the...

  • USMC | DRB | 2007_Marine | MD0701082

    Original file (MD0701082.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) 20030108 - 20030120 Active: Period of Service Under Review: Date of Enlistment: 20030121Years Contracted:; Extension: Date of Discharge: 20060908Length of Service: Yrs Mths17 Dys Lost Time: Days UA: Days Confined: Education...

  • NAVY | DRB | 2007_Navy | ND0701110

    Original file (ND0701110.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)20030109 - 20030406Active: Period of Service Under Review: Date of Enlistment: 20030407Years Contracted:; Extension: Date of Discharge:20050825Length of Service: 02 Yrs 04Mths19 DysLost Time:Days UA: Days Confined: Education...

  • NAVY | DRB | 2013_Navy | ND1300103

    Original file (ND1300103.rtf) Auto-classification: Denied

    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. ” 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...

  • NAVY | DRB | 2011_Navy | ND1100080

    Original file (ND1100080.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends medical issues contributed 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole...