Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0701029
Original file (ND0701029.rtf) Auto-classification: Denied
ex-OS2, USN
ND07-01029
Current Discharge and Applicant’s Request
Application Received: 20070724   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 1910-142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. One isolated incident in 14yrs of service

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 contends that his general discharge was inequitable because he only made one mistake during his 14 years of service . He further contends that upon being separated , he has paid for it dearly, in that he has not been able to find employment. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order a nd discipline. The NDRB viewed t he Applicant's record which is marred by a finding of guilty at a nonjudicial punishment (NJP) proceeding on 200 4 05 26 for violation of UCMJ Art . 92 , Dereliction of duty and Art 134 (63) , Indecent assault . The Applicant’s record also reflects that on 20040526 he elected an Administrative board a nd at this proceeding admitted to committing a sexual assault on one of his subordinates while on duty , by kissing her . The board found that the Applicant had committed misconduct and recommended a general discharge. This misconduct substantiates the reason for the separation as well as the characterization of service as general (under honorable conditions). No other characterization could more clearly describe the Applicant's service.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. 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 could 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. As of this time, the Applicant has not provided any post-service documentation to consider mitigating 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)      19900914 - 19900918               Active: 19900919-20000918
Period of Service Under Review:
 Date of Enlistment: 2000091 9      Years Contracted : ; Extension:   Date of Discharge: 20040922
Length of Service : 4 Yrs 0 Mths 4 D ys     Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 34          Highest Rank /Rate : E-6
Evaluation marks (# of occasions):       Performance: 4.1 ( 5 )       Behavior: 4.0 ( 5 )          OTA: 4.03
Awards and Decorations ( per DD 214): NDSM(2), NGCM (4), SSDR(3),Navy E R, SWASM, NMCAM(2), EPR

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

 2004 0526 :       NJP -- Viol UCMJ Art. 92 – Dereliction of duty and Art 134 (63) (2Specs)- Indecent assault .
         Awarded - FOP ( $ 1,342 ) for ( 2 months); RIR ( E-5).

Discharge Process

 Date Notified:                                       20040526
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20040526
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Administrative Board Date :       20040802
Findings, by preponderance of the evidence:     BY - .
        
         BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20040826 ) RETAIN, ACTS NOT LEWD OR LASCIVIOUS
Separation Authority (date):     COMNAVPERSCOM, MILLINGTON, TN ( 20040915 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20040922

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) CHG 11, effective 26 April 2005 until present, Article 1910-14 2 , SEPARATION 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 .

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 | 2011_Marine | MD1101282

    Original file (MD1101282.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 Government affairs unless there is substantial...

  • USMC | DRB | 2007_Marine | MD0700170

    Original file (MD0700170.rtf) Auto-classification: Denied

    20040806 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) (20040809) Administrative Board Commanding Officer Recommendation (date): (2004082) SJA review (date): (20040915) Separation Authority (date): COMMANDER, MCRD/WRR SAN DIEGO (20040922) Basis for discharge directed: DUE TO Characterization directed: Date Applicant Discharged: 20040930 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service:...

  • USMC | DRB | 2008_Marine | MD0800520

    Original file (MD0800520.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...

  • USMC | DRB | 2008_Marine | MD0800947

    Original file (MD0800947.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Record of service.3. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

  • NAVY | DRB | 2011_Navy | ND1101018

    Original file (ND1101018.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.2. After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, court-martial proceedings, and the punitive discharge process, the NDRB found that clemency was not warranted and the sentence awarded the Applicant at his court-martial was...

  • USMC | DRB | 2007_Marine | MD0700682

    Original file (MD0700682.rtf) Auto-classification: Denied

    Record 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 Summary of ServicePrior Service: Inactive: USMCR (DEP) 20011023 - 20020121 Period of Service Under Review: Date of Enlistment: 20020122Years Contracted:4; Extension: Date of Discharge:20060109Length of Service: 03 Yrs 11Mths18 DysLost Time:Days UA: Days...

  • NAVY | DRB | 2007_Navy | ND0700632

    Original file (ND0700632.rtf) Auto-classification: Denied

    ” 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. 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. Board Membership: The names and votes of the members of the Board are...

  • NAVY | DRB | 2010_Navy | ND1001137

    Original file (ND1001137.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant desires to reenlist in the military. 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...

  • NAVY | DRB | 2008_Navy | ND0801272

    Original file (ND0801272.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. ” 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...

  • NAVY | DRB | 2007_Navy | ND0700141

    Original file (ND0700141.rtf) Auto-classification: Denied

    Date:20070913Location:Washington D.C.The Board found that Discussion Issue 1 (): The Applicant apparently believes that his discharge was based on his refusal to submit to alcohol screening and treatment. 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...