Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0701012
Original file (ND0701012.rtf) Auto-classification: Denied
ex-SR, USN
ND07-01012
Current Discharge and Applicant’s Request
Application Received: 20070723                              Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE   Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT
Applicant’s Issues:       1. Young and immature; m inor misconduct did not warrant discharge
                           2. Improperly counseled on rights
                           3. Post-service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 080110             Location: Washington D.C         R epresentation :

Discussion

 Issue 1 ( ). The Applicant listed a number of purported issues (2 – 8) which the Board determined were not separate issues but separate factors offered in support of the issue that the Applicant’s misconduct in light of its nature, and his youth and immaturity, did not warrant discharge. The Applicant’s service was marred by a nonjudicial punishment and summary court-martial for violations of the Uniform Code of Military Justice, Articles 86, 87 and 112a. Violation of each of these Articles is considered a serious offense for which a punitive discharge is authorized upon conviction at spe cial or general court-martial. Violation of Article 112a alone usually results in discharge characterized as under other than honorable conditions. Each of the Applicant’s other serious offenses also warrant discharge. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. To the contrary, t he Applicant’s record indicates that he actively sought means to avoid his duty . The summary of service clearly documents that misconduct due commission of a serious offense was the reason the Applicant was discharged. The Applicant could have also been processed for misconduct due to drug abuse. No change to his narrative reason for discharge is warranted. Further, t he Applicant’s mis conduct was serious , reflect ed his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.

Issue 2 ( ). The Applicant contends that he was improperly notified of his rights in the administrative separation process. The government is entitled to a presumption of regularity in the conduct of its affairs. The Notification to the Applicant, and his Acknowledgement, appear correct on their face, and the Applicant’s assertion is not sufficient in itself to overcome the presumption of regularity. The Boar d also had little doubt, in light of his extended serious misconduct, that even if the Applicant had fully exercised his rights the outcome would likely have been the same.

Issue 3 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. 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.

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

Administrative Corrections to the Applicant’s D  D 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
          “ MISCONDUCT ”

The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19911108 - 19920401              Active:                -      
Period of Service Under Review:
 Date of Enlistment: 19920402                        Years Contracted : ; Extension:   Date of Discharge: 19930413
Length of Service : 01 Yrs 00 Mths 12 D ys                            Lost Time : Days UA: 52 Days Confine d : 22
Education Level:         Age at Enlistment:       AFQT: 58          Highest Rank /Rate : SR
Evaluation marks (# of occasions):       Performance: 2.6 ( 3 )       Behavior: 2.5 ( 3 )                  OTA: 2.87
Awards and Decorations ( per DD 214): NDSM, BATTLE "E"

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

 19920717:        Medical Record: Reason for visit: Referred for mental health evaluation, “wants out of the Navy.” Regrets enlisting, unhappy, homesick—“I hate the discipline, rules and regulations and the way I’m treated.”
         Diagnosis: I: Occupational problems; II: Immature personality traits; III: No known physical disorder
         Recommendation: Not mentally ill, responsible for actions; No psychiatric objections to appropriate command administrative actions; No psychiatric treatment required.

 19920902:        To unauthorized absence.

19921116:        From unauthorized absence (44 days/surrendered).

 19921214 :        SCM -- Viol UCMJ Art. 86 – Unauthorized absence from 19920902 – 19921116 .
         Awarded - FOP ( $ 518.00 ) for ( 1 months); Confinement ( 24 days) ; Conf B&W (3 days) .

19930105:        From confinement to full duty.
19930111:        Retention Warning for Summary Court-Martial for violation of Article 86, UCMJ.

19930302:        To unauthorized absence. Missed ship’s movement.

19930310:        From unauthorized absence (8 days/surrendered).

19930818:        NJP -- Viol UCMJ Art. 86 – Unauthorized absence 19930302 – 19930310; Art 87 – 19930302 missed ship’s movement through design; Art 112a – 19930310 wrongfully use marijuana.
         Awarded - FOP ($407.00) for (2 months); Restr for (45 days); Extra duties (45 days).
19930331:        Medical Record: Reason for visit: Drug/alcohol screening
         Diagnosis: Drug abuse; no alcohol abuse/dependency; no drug dependency
         Recommendation: No treatment required.
Discharge Process

 Date Notified:                                       19930322
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19930322 (Applicant did not object to separation)
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Commanding Officer Recommendation (date):        ( 19930324 )
Separation Authority (date):     BUPERS ( 19930407 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19930413

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 5, effective 05 Mar 93 until 21 Jul 94, 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 s 86 , Absence without leave (for more than 30 days); 87, Missing movement; 112a, Wrongful use, possession, etc., of controlled substances.


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 | 2008_Navy | ND0800115

    Original file (ND0800115.rtf) Auto-classification: Denied

    However, the Board did determine that the record factually supported each of these reasons for discharge, that discharge was appropriate for the Applicant’s misconduct, and that a characterization of service as under other than honorable conditions was warranted by the misconduct clearly documented in the record. 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...

  • NAVY | DRB | 2008_Navy | ND0801015

    Original file (ND0801015.rtf) Auto-classification: Denied

    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 86 (more than 30 Days). An 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 Board determined an upgrade, even to a “General (Under Honorable Conditions), would be inappropriate...

  • USMC | DRB | 2007_Marine | MD0700574

    Original file (MD0700574.rtf) Auto-classification: Denied

    In service - Equity2. 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: USMCR (DEP)19890518 - 19890705Active: Period of Service Under Review: Date of Enlistment: 19890706Years Contracted:; Extension: Date of Discharge:19930621Length of Service: 03 Yrs 11Mths17 DysLost Time:Days UA: Days...

  • NAVY | DRB | 2009_Navy | ND0900648

    Original file (ND0900648.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. ” 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 related...

  • NAVY | DRB | 2006_Navy | ND0601183

    Original file (ND0601183.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 By a vote of the Characterization shall . 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 the Applicant’s discharge...

  • USMC | DRB | 2007_Marine | MD0700377

    Original file (MD0700377.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: USMCR (DEP) 19920629 - 19920803 Period of Service Under Review: Date of Enlistment: 19920804Years Contracted:4; Extension: Date of Discharge: 19951214Length of Service: 03 Yrs 01Mths 28 DysLost Time:Days UA: NONE Days Confined:...

  • NAVY | DRB | 2008_Navy | ND0800461

    Original file (ND0800461.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his 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 Pertinent Regulation/Law A.Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05...

  • NAVY | DRB | 2007_Navy | ND0700284

    Original file (ND0700284.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service. Recommendation on Separation: - Recommendation on Characterization: Commanding Officer Recommendation (date): (19930219) Separation Authority (date): BUPERS (19930310)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 19930324 Types of Documents Submitted by Applicant and...

  • NAVY | DRB | 2007_Navy | ND0700916

    Original file (ND0700916.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: “MISCONDUCT ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. Awarded - FOP ($200.00) for (2...

  • NAVY | DRB | 2007_Navy | ND0700050

    Original file (ND0700050 .rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. 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.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible...