Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700815
Original file (ND0700815.rtf) Auto-classification: Denied
ex-ATAA, USN
ND07-00815
Current Discharge and Applicant’s Request
Application Received: 20070523   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA benefits

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071220             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 .

Per regulation, when an Applicant does not request a specific characterization of service the Board presumes that the request is for an honorable discharge. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Applicant’s service was marred by 2 nonjudicial punishments for violations of the Uniform Code of Military Justice, Articles 86 and 92. Violation of Article 92 is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. The Applicant was provided the opportun ity to challenge the reason for, and characterization of, his proposed discharge and did not object. 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 . An u pgrade of his characterization of service is not warranted .

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:   
USANG    19900724 - 19920914 (Active and Inactive periods not determinable)
Period of Service Under Review:
 Date of Enlistment: 19920915                        Years Contracted :                          Date of Discharge: 19941216
Length of Service : 02 Yrs 03 Mths 02 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 42          Highest Rank /Rate : ATAN
Evaluation marks (# of occasions):       Performance: 3.1 ( 2 )       Behavior: 3.3 ( 2 )                  OTA: 3.50
Awards and Decorations ( per DD 214): Rifle MM , Hand Grenade SS , A rmy Service Ribbon , NDSM, SSDR

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

 19940121:        NJP -- Viol UCMJ Art. 86 - Unauthorized absence on 19940111 .
         Awarded - RIR (E-1) , susp 6 months ; Restr for (60 days).
         [NDRB note: reduction at NJP is limited to one paygrade.]
19940928 :        NJP -- Viol UCMJ Art. 86 - Unauthorized absence 19940907; Art. 92 - Failure to obey a lawful order 19940907 .
         Awarded - FOP ( $ 466.00 ) for ( 1 month); RIR ( E-2 ); Restr for ( 60 days).
Discharge Process

 Date Notified:                                       19991006
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19941011
Rights Elected at Notification:                     Applicant “did not” object to separation
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Commanding Officer Recommendation (date):        ( 19941103 )
Separation Authority (date):     BUPERS ( 19941121 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19941216

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 July 1994 until 2 October 1996,
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 92, Failure to obey order or regulation.


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 | ND0700277

    Original file (ND0700277.rtf) Auto-classification: Denied

    In service - Equity2. Recommendation on Separation: BY Recommendation on Characterization: BY Commanding Officer Recommendation (date): (19941122) Separation Authority (date): BUPERS (19941209)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 19941216 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service: Service and/or Medical Record:Other Records: Related to Post-Service Period:...

  • NAVY | DRB | 2007_Navy | ND0700780

    Original file (ND0700780.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. 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...

  • USMC | DRB | 2007_Marine | MD0700265

    Original file (MD0700265.rtf) Auto-classification: Denied

    19930423: NJP imposed and suspended on 19930409 for a period of 6 months vacated.19930803: CO's NJP -- Viol UCMJ Art. 19930824 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (19930823) SJA review (date): (19930830) Separation Authority (date): COMMANDING GENERAL, 1 ST Marine Division (19930910) Basis for discharge directed: DUE TO: Characterization directed: Date...

  • 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 | ND0700784

    Original file (ND0700784.doc) Auto-classification: Denied

    Period of Service Under Review: Date of Enlistment: 19890607 Years Contracted: ; Extension: Date of Discharge: 19930218 Length of Service: 03 Yrs 08 Mths 12 Dys Lost Time: Days UA: 48 Days Confined: 25 Education Level: Age at Enlistment: AFQT: 59 Highest Rank/Rate: STGSN Evaluation marks (# of occasions): Performance: 3.2(4) Behavior: 3.3(4) OTA: 3.40 (4.0 scale) Awards and Decorations (per DD 214): NDSM Medical/Service Record Entries Related to Characterization of Service or Basis for...

  • NAVY | DRB | 2007_Navy | ND0700404

    Original file (ND0700404.rtf) Auto-classification: Denied

    There is no indication in the record that the Separation Authority failed to consider all relevant factors, including the Applicant’s overall service, in determining that an under than honorable conditions discharge was warranted. 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. Board Membership: The names and votes of the members of...

  • NAVY | DRB | 2007_Navy | ND0700138

    Original file (ND0700138.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT. Date Applicant Responded to Notification:NOT FOUND IN RECORD Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): Separation Authority (date): NOT FOUND IN RECORDReason for discharge directed: Characterization directed: Date Applicant Discharged: 20021002 Types of Documents Submitted by Applicant and Considered...

  • NAVY | DRB | 2007_Navy | ND0700956

    Original file (ND0700956.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 Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “UNDER OTHER THAN HONORABLE CONDITIONS ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. ...

  • NAVY | DRB | 2007_Navy | ND0701068

    Original file (ND0701068.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)19920806 - 19930124Active: Period of Service Under Review: Date of Enlistment: 19930125Years Contracted:; Extension: Date of Discharge:19950315Length of Service: 02 Yrs 01Mths21 DysLost Time:Days UA: 1 Days Confined: Education...

  • NAVY | DRB | 2007_Navy | ND0700862

    Original file (ND0700862.rtf) Auto-classification: Denied

    Date: 20080103Location:Washington D.C Representation: 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. An upgrade to honorable would be inappropriateIn 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...