Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0701128
Original file (ND0701128.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20070816  
Characterization of Service Received:
Narrative Reason for Discharge: IN LIEU OF TRIAL BY COURT MARTIAL       
Authority for Discharge: MILPERSMAN 3630650

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

Summary of Service

Prior Service:         
Period of Service Under Review:
 Date of Enlistment: 19940713               Period of enlistment : Years (3 active)                  Date of Discharge: 19951031
Length of Service : Yrs Mths 19 D ys      Education Level:         Age at Enlistment:       AFQT: 34
Highest Rank /Rate : AR     Evaluation marks: Performance: 3.4 ( 1 )     Behavior: 3.2 ( 1 )          OTA: 3.40
Awards and Decorations ( per DD 214): Rifle , Pistol

Periods of UA /Confinement : 19941222-19941223; 19950317-19950320; 19950328-19950406

NJPs :    

S CMs :            

SPCMs:  

Retention Warnings:

Types of Documents Submitted

 Related 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)      



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Receive full military benefits

Decision

Date: 20 08 0117             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL .
Discussion

 : 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 .

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. The Applicant was charged with using cocaine, which he admitted to doing on numerous occasions. Rather than risk more severe consequences at court-martial, he voluntarily submitted a request for administrative separation in lieu thereof having been fully advised of the consequences. Use of illegal drugs is a serious offense for which a punitive discharge is authorized. Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation for this criminal misconduct usually results in characterization of service as under other than honorable conditions. 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 9, effective 22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 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 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

Recorder Review of Discharge Process

 Notification :
Applicant accurately notified of reason for discharge?                     Yes      No       Not found in record
Applicant accurately notified of least favorable characterization?       Yes      No       Not found in record
Applicant accurately notified of applicable rights?                        Yes      No       Not found in record

Rights Elected :  Not found in record
Counsel          Copies   Statement                GCMCA review     Administrative Board                      
Administrative Board      Not applicable          Waived          Not found in record
Reason(s) for discharge supported?                                           Yes      No       Not found in record
Recommendation?           Retain   Separate       
Recommendation for suspension?                                       Yes      No       Not found in record

CO recommendation:                Retain   Separate       

Proper Separation Authority ?                                               Yes      No       Not found in record
Reason for discharge directed:   -
Characterization directed:               


Were factual requirements for separation met?                      Yes      No       Not found in record
Was retention warning required for reason for separation?                 Yes      No      
         Was retention warning given?                                Yes      No       Not found in record



Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801746

    Original file (ND0801746.rtf) Auto-classification: Denied

    The Applicant’s counsel requested an upgrade in the characterization of the Applicant’s service to Honorable and the narrative reason changed to convenience of the government based on the contention that the Applicant’s misconduct as discussed supra, is mitigated by his diagnosis of post-traumatic stress disorder (PTSD) and post-service conduct. After a thorough review of the his official service records, his post-service documentation regarding his PTSD, post-service accomplishments and...

  • NAVY | DRB | 2012_Navy | ND1200807

    Original file (ND1200807.rtf) Auto-classification: Denied

    The NDRB acknowledges his innocence of the civilian charge of murder, however, from his DD Form 214, it appears the Navy referred charges to a Special or General Court-Martial, likely for the charge of violating UCMJ Article 86 (Absence without leave). 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...

  • NAVY | DRB | 2007_Navy | ND0700871

    Original file (ND0700871.rtf) Auto-classification: Denied

    Although the record does not contain a copy of the Applicant’s request for discharge in lieu of trial by court-martial, it was referenced in the Separation Authority’s action and the Board found sufficient evidence in the record to conclude that the reason for discharge was factually based. 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 Applicant has not provided sufficient...

  • NAVY | DRB | 2008_Navy | ND0800737

    Original file (ND0800737.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19951030 - 19960109Active: Period of Service Under Review: Date of Enlistment: 19960110Period of enlistment: YearsExtensionDate of Discharge:19960806Length of Service: Yrs Mths27 DysEducation Level: Age at Enlistment:19AFQT: 61Highest Rank/Rate:EMEvaluation marks:Performance: NFIRBehavior:NFIR OTA: NFIRPeriods of UA:19960507 – 19960627 (49 Days) Types of...

  • NAVY | DRB | 2009_Navy | ND0901087

    Original file (ND0901087.rtf) Auto-classification: Denied

    The command granted his request and discharged him with an Under Other than Honorable characterization of service based on the offenses committed. 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...

  • NAVY | DRB | 2007_Navy | ND0700787

    Original file (ND0700787.rtf) Auto-classification: Denied

    An upgrade 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. ” 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...

  • NAVY | DRB | 2007_Navy | ND0700919

    Original file (ND0700919.rtf) Auto-classification: Denied

    Issue 2 ().Per regulation, members are eligible for an entry level separation within the first 180 days of their enlistment. ” 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2010_Navy | ND1001409

    Original file (ND1001409.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/ToCongress member: Pertinent Regulation/Law A. Moreover, although the...

  • NAVY | DRB | 2008_Navy | ND0801339

    Original file (ND0801339.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 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...

  • NAVY | DRB | 2009_Navy | ND0901617

    Original file (ND0901617.rtf) Auto-classification: Denied

    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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.The Applicant’s record of...