Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700942
Original file (ND0700942.rtf) Auto-classification: Denied
ex-GSMFA, USN
ND07-00942
Current Discharge and Applicant’s Request
Application Received: 20070705   Characterization Received:
Narrative Reason: PATTERN OF MISCONDUCT          Authority: MILPERSMAN 1910-140

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. VA Benefits
                           2. Employment Opportunities

Decision

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

Date: 20080103             Location: Washington D.C          R epresentation :

Discussion

 Issues 1 - 2 : 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 .

T he Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. T he Applicant contends that h is problems were attributed to immaturity. While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under 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 one discharge warning and two non-judicial punishments for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey a direct order), Article 107 (False Official Statement), Article 128 (Assault, consummated by battery, and Article 134 (Threat, communicating). Violation of Articles 92, 107, 128, and 134 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 .
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: USNR (DEP)     20020228 - 20020718              Active:         
Period of Service Under Review:
 Date of Enlistment: 20020719     Years Contracted : ; Extension:   Date of Discharge: 20040402
Length of Service: 1 Yrs 8 Mths 13 D ys   Lost Time: Days UA: Days Confined:
Education Level:         Age at Enlistment:       AFQT: 31          Highest Rank/Rate: GSM3
Evaluation marks (# of occasions):       Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )         OTA: 2.0
Awards and Decorations (per DD 214): National Defense Service Medal, Global War On Terrorism Expeditionary Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

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

 20040131:        NJP -- Viol UCMJ Art. 128 – Assault consummated by battery, Art. 134 – Threat, communicating.
         Awarded - FOP ($703.00) for (2 months); RIR (E-3); Restr for (45 days); Extra duties (45 days).

20040131:        Retention Warning for Assault consummated by battery and threat, communicating.

20040310:        NJP -- Viol UCMJ Art. 92 – Failure to obey a direct order, Art. 107 – False official statement.
         Awarded - FOP ($673.00) for (2 months); RIR (E-2); Restr for (60 days).
Discharge Process

 Date Notified:                                       20040330
 Reason for Discharge:    -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20040330
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 20040330 )
Separation Authority (date):     Commanding Officer USS SAN JACINTO ( 20040330 )
Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20040402

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 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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, Articles 92, 107 , 128 , and 134.


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 | 2008_Navy | ND0801237

    Original file (ND0801237.rtf) Auto-classification: Denied

    A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.Due to the significant negative aspects in the Applicants record of service, the Board determined thatthe medical evaluations were sufficient enough to only support an upgrade in the discharge characterization to “ General (Under Honorable...

  • NAVY | DRB | 2009_Navy | ND0900309

    Original file (ND0900309.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicant DD Form 293 and personal letter, no documentation was provided for review. Should the Applicant obtain additional...

  • NAVY | DRB | 2009_Navy | ND0900338

    Original file (ND0900338.rtf) Auto-classification: Denied

    Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. ” 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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical...

  • NAVY | DRB | 2011_Navy | ND1100391

    Original file (ND1100391.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to qualify for government employment.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...

  • NAVY | DRB | 2010_Navy | ND1001508

    Original file (ND1001508.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. DEPARTMENT OF THE...

  • NAVY | DRB | 2008_Navy | ND0801671

    Original file (ND0801671.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions;...

  • NAVY | DRB | 2008_Navy | ND0800879

    Original file (ND0800879.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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...

  • NAVY | DRB | 2009_Navy | ND0900025

    Original file (ND0900025.rtf) Auto-classification: Denied

    The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)” to better his life. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the numerous and varied UCMJ violations involved, and based on the lack post service documentation provided an upgrade would be inappropriate.Should the Applicant obtain additional...

  • NAVY | DRB | 2007_Navy | ND0700738

    Original file (ND0700738.rtf) Auto-classification: Denied

    The NDRB found that the Applicant’s service was equitably characterized.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. ” 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....

  • NAVY | DRB | 2007_Navy | ND0700836

    Original file (ND0700836.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change: Applicant’s Issues:1.Reenlist in California Army National Guard2.Inequitable because based on one incident in 32 months of service. 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 an...