Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700596
Original file (ND0700596.rtf) Auto-classification: Denied
ex-OS3, USN
ND07-00596
Current Discharge and Applicant’s Request
Application Received: 20070404   Characterization Received:
Narrative Reason: IN LIEU OF TRIAL BY COURT MARTIAL Authority: MILPERSMAN 1910-142

 Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:      1. Reenlist
                           2. Served honorably.


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 071129                      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 1 ( ): 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 characterization of service 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 multiple periods unauthorized absence as well as incarceration by civil authorities . The Applicant’s DD-214 indicates that he requested to be discharge for the good of the service to escape trial by court-martial. In this request the Applicant would have noted that his rights were thoroughly explained to him and that he received counsel or waived his right to consult counsel . Additionally, the Applicant must have admitted guilt to the chargers preferred against him. Finally the Applicant would have certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. 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.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that


Summary of Service
Prior Service:
 Inactive: USNR (DEP)              20001120 - 20010227              Active:
Period of Service Under Review:
 Date of Enlistment: 20010228               Years Contracted : ; Extension:   Date of Discharge: 20040513
Length of Service: 03 Yrs 02 Mths 16 D ys                           Lost Time: Days UA:
Education Level:         Age at Enlistment: 17              AFQT: 67                   Highest Rank/Rate: OS3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations (per DD 214): NDSM, MUC, SSDR, OSR, A F EM, RMM W/BRONZE "S"


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

 20040211:        Applicant apprehended by civilian authorities (North Carolina) .

20040222:        Applicant to unauthorized absence 0701 (expiration of leave) .

20040311:        Applicant from unauthorized absence 1400 (18 days/surrendered at TPU Norfolk ).

20040405:        Applicant to unauthorized absence 0730.

20040412:        Applicant from unauthorized absence 0730 (7 days/surrendered).

20040513:        Applicant discharged in absentia.


Discharge Process

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

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

Commanding Officer Recommendation (date):       
Separation Authority (date):                       NOT FOUND IN RECORD
         Reason for Discharge directed:           
         Characterization directed:                        
Date Applicant Discharged :                         20040513

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 2002 until 30 May 2005, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .


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, provided 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 granted 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.
Employment/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 | 2012_Navy | ND1200207

    Original file (ND1200207.rtf) Auto-classification: Denied

    The Applicant requests an upgrade to reenlist. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.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.The Applicant remains eligible for a personal...

  • NAVY | DRB | 2008_Navy | ND0800269

    Original file (ND0800269.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP) 19981121 - 19981207 Active: 19981208 – 20020829 HON Period of Service Under Review: Date of Enlistment: 20020830 Period of enlistment: Years Extension Date of Discharge: 20040513Length of Service: Yrs Mths Dys Education Level: Age at Enlistment: AFQT: 33Highest Rank/Rate: SN Evaluation marks: Performance: 4.0(1) Behavior: 4.0(1) OTA: 3.86 Awards and Decorations...

  • NAVY | DRB | 2010_Navy | ND1001810

    Original file (ND1001810.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief 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...

  • NAVY | DRB | 2012_Navy | ND1200697

    Original file (ND1200697.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 governmentalaffairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2011_Navy | ND1101754

    Original file (ND1101754.rtf) Auto-classification: Denied

    Although the NDRB was not able to discern the extent of the Applicant’s misconduct, the record shows the Applicant was administratively separated from the Navy after requesting separation in lieu of trial by court-martial, which indicates the Applicant’s command had referred charges to a Special Court-Martial that could have resulted in a punitive discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2010_Navy | ND1000151

    Original file (ND1000151.rtf) Auto-classification: Denied

    Relief 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...

  • NAVY | DRB | 2015_Navy | ND1500496

    Original file (ND1500496.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2009_Marine | MD0901818

    Original file (MD0901818.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for...

  • NAVY | DRB | 2015_Navy | ND1500576

    Original file (ND1500576.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. ” Additional Reviews :...

  • NAVY | DRB | 2014_Navy | ND1400381

    Original file (ND1400381.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20081113 - 20090816Active: Period of Service Under Review: Date of Current Enlistment: 20090817Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20121126Highest Rank/Rate:OS3Length of Service:Years Months10 DaysEducation Level:AFQT: 50EvaluationMarks:Performance:3.0(3)Behavior:3.3(3)OTA: 3.06Awards and Decorations (per DD 214):Pistol Periods of...