Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700552

Original file (ND0700552.rtf) Auto-classification: Denied

ex-OSSN, USN
ND07-00552

Current Discharge and Applicant’s Request

Application Received: 20070316 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 36206090

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Immature in Service
                           3. Post Service

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Date: 20 071115 Location: Washington D.C          R epresentation :

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 Applicant contends that h er problems were attributed to h er immaturity. While s he may feel that this was the underlying cause of h er misconduct; the record clearly reflects h er willful misconduct and demonstrated s he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for h er conduct or that s he should not be held accountable for h er actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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. The Applicant’s service was marred by the award of two nonjudicial punishment s (NJP) for violation of Uniform Code of Military Justice (UCMJ) Article 86 (Unauthorized absence) , Article 107 (False official statement), and Article 112a (Wrongful use of controlled substance). Violation of UCMJ Articles 107 and 112a 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 .

Issue 3: (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided a church membership card and her statement of her post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the Applicant's undocumented claims of good post service conduct did not mitigate the misconduct that resulted in the characterization of 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)      19880908 - 19881024              Active:          19881025 - 19930121
Period of Service Under Review:
Date of Enlistment: 19930122               Years Contracted : 6                Date of Discharge: 19950208
Length of Service : 02 Yrs 00 Mths 17 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 53          Highest Rank /Rate : 0S3
Evaluation marks (# of occasions):       Performance: 3.7 ( 4 )       Behavior: 3.5 ( 7 )          OTA: 3.55
Awards and Decorations ( per DD 214): NSDM, SSDR (2), SASM W/BRONZE STAR

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

19931119:        NJP -- Viol UCMJ Art. 86 - Unauthorized absence ( 1 day /surrendered ), Art. 107 - False official statement.
         Awarded - FOP ($100.00) for (1 month); Restr for (14 days); Extra duties (14 days).

19941215 :        NJP -- Viol UCMJ Art. 112a - Wrongful use of marijuana .
         Awarded - FOP ( $ 552.00 ) for ( 2 months); RIR ( E-3 ); Restr for ( 45 days); Extra duties ( 45 days) .

19941228:        Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Abuse denied. Random urinalysis on 19941128. Physician found applicant not dependent and recommended separation. Applicant admitted to using marijuana 1-3 times per week from November 1991 to December 1994. Commanding Officer recommended separation. Comments: RMSN J_ tested positive for THC (urinalysis). Member will be ADSEP from service not via VA hospital.

19941228 :        Medical Record: Reason for visit: Dependency evaluation.
         Diagnosis: Not dependent.
         Recommendation: Separate from service.

Discharge Process

Date Notified:                                       19941223
Reason for Discharge:     -
         -
Least Favorable Characterization:

Date Applicant Responded to Notification:                  19941223
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):        ( 19950106 )
Separation Authority (date):     BUPERS ( 19950131 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       19950208

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) Berean Missionary Baptist Church membership card
Letter from National Personnel Records Center
Department of Veterans Affairs, Application and Enrollment Certification for Individualized Tutorial Assistance form and instruction (4 pages)

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 22 Jul y 19 94 until 2 Oct ober 19 96,
Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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 107 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

USMC | DRB | 2012_Marine | MD1201592

Original file (MD1201592.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant wants her discharge upgraded so she can reenlist in the military. ” 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.
NAVY | DRB | 2011_Navy | ND1101114

Original file (ND1101114.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)19980825 - 19990621Active: Period of Service Under Review: Date of Current Enlistment: 19990622Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20010907Highest Rank/Rate:FC3Length of Service:Year(s)Month(s) 17 Day(s)Education Level:AFQT: 82EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NONEPeriods of...
NAVY | DRB | 2009_Navy | ND0901044

Original file (ND0901044.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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
USMC | DRB | 2009_Marine | MD0902017

Original file (MD0902017.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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...
USMC | DRB | 2010_Marine | MD1002118

Original file (MD1002118.rtf) Auto-classification: Denied

Violation of UCMJ Articles 91, 92, 107, and 112a are all considered serious offenses that warrant a punitive discharge after adjudication at a court-martial. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries and discharge process, the Board found The awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a...
USMC | DRB | 2013_Marine | MD1300325

Original file (MD1300325.rtf) Auto-classification: Denied

The evidence of record also reflects the Applicant was found guilty at nonjudicial punishment for violations of UCMJ Articles 121 (Larceny, 2 specifications), 107 (False official statement), and 112a (Wrongful use, possession, etc. ” 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...
NAVY | DRB | 2008_Navy | ND0800555

Original file (ND0800555.rtf) Auto-classification: Denied

Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...
NAVY | DRB | 2007_Navy | ND0700760

Original file (ND0700760.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)19800627 - 19800728Active: 19800729 - 19860629 19860630 - 19910822 19910823 - 19941024 Period of Service Under Review: Date of Enlistment: 19941025Years Contracted:; Extension: Date of Discharge:19960610Length of Service: 1 Yrs...
NAVY | DRB | 2008_Navy | ND0800413

Original file (ND0800413.rtf) Auto-classification: Denied

Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...
NAVY | DRB | 2010_Navy | ND1001613

Original file (ND1001613.rtf) Auto-classification: Denied

Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion 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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700552

Similar Decisions