Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0800104
Original file (ND0800104.rtf) Auto-classification: Denied

ex-AEAN, USN
Current Discharge and Applicant’s Request
Application Received: 20071023
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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


Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19900426 - 19910218             
Period of Service Under Review:
 Date of Enlistment: 19910219               Period of enlistment : 4 Years             Date of Discharge: 19930126
Length of Service: 01 Yrs 10 Mths 12 D ys         Education Level: 12       Age at Enlistment: 18              AFQT: 41
Highest Rank/Rate: AEAN   Evaluation marks: Performance: 2.3 ( 2 )   Behavior: 2.4 ( 2 )                OTA: 2.3 (2)
 Awards and Decorations (per DD 214):

Periods of UA/C ONF : 19921230 - 19930124

NJP:     19921210 : Art icle 92 (failure to obey) . Awarded - and administrative discharge.
         19910802 : Art icle 86 (unauthorized absence), 92 (failure to obey) and 107 (false official statement) . Awarded - and

CC:      19921216 : Assault in the fourth degree . Sentence – 365 days in jail, 335 suspended pending mental evaluation, $250 fine.
         19921230: Assault in the fourth degree. Sentence – additional 30 days in jail.

Retention Warnings: 19910802 : Deficiencies in performance and conduct .


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 Representation:              From Member of Congress:
Other Documentation (Describe)



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


Applicant’s Issues

 1. Punishment does not fit the crime, past performance and conduct not taken into account.


Decision

Date: 2008 0214             Location: Washington D.C         R epresentation :

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

Discussion

Issue 1 ( ): D espite a servicemember’s prior record of se rvice certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A under other than honorable conditions di scharge 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 a two civil convictions for forth degree assault and two NJPs for violations of UCMJ Article s 86 (unauthorized absence), 92 (failure to obey, 2 specifications) and 107 (false official statements) . Each violation of Articles 92 and 107 constitutes the “co mmission of a serious offense” which is punishable by a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a Courts Martial. The Applicant was properly advised of his intended administrative separation due to misconduct by the commission of a serious offense and civil conviction. During this processing the Applicant elected to waive his right to consult with an attorney and to have his case heard before an administrative board. After ensuring proper processing in accordance with MILPERSMAN 3630600 the discharge authority directed the Applicant’s discharge by reason of civil conviction with a characterization of service of under other than honorable conditions. The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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, Article 92 .



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 | 2006_Navy | ND0600002

    Original file (ND0600002.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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

  • NAVY | DRB | 2007_Navy | ND0701179

    Original file (ND0701179.rtf) Auto-classification: Denied

    Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by one retention warning and two nonjudicial punishments (NJP) for a violations of Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 92 (Dereliction of duties), 117 (Provoking words), and Article 121 (Larceny). Recommendation on Separation: BY Recommendation on Characterization: BY...

  • NAVY | DRB | 2008_Navy | ND0800200

    Original file (ND0800200.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...

  • NAVY | DRB | 2006_Navy | ND0600440

    Original file (ND0600440.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT FOR OFFICIAL USE ONLY ex-AEAR, USN Docket No. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application and the attached letter:“DEAR DISCHARGE REVIEW BOARD: THE FOLLOWING ISSUES ARE THE REASON...

  • NAVY | DRB | 2006_Navy | ND0600979

    Original file (ND0600979.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discovered there was no impropriety in the characterization of the Applicant's service or the assigned reason for discharge at the time of discharge. Issue 4 (Equity): The Applicant provided extensive evidence of post service conduct in support of his request for upgrade. After a complete review of the entire record, including the evidence submitted by the Applicant, the...

  • NAVY | DRB | 2010_Navy | ND1001475

    Original file (ND1001475.rtf) Auto-classification: Denied

    ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...

  • NAVY | DRB | 2007_Navy | ND0701156

    Original file (ND0701156.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 the 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 9,...

  • NAVY | DRB | 2012_Navy | ND1200511

    Original file (ND1200511.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .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...

  • NAVY | DRB | 2008_Navy | ND0800895

    Original file (ND0800895.rtf) Auto-classification: Denied

    The Applicant’s record of service was marred by for violations of the Uniform Code of Military Justice,Articles 91, 92, 107, and 134 (2 specifications). 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 conduct mitigates the reason for the characterization of discharge. Additionally, the NDRB does not have the authority to...

  • NAVY | DRB | 2006_Navy | ND0600462

    Original file (ND0600462.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 20000207 - 20000816ELS USNR (DEP) 20010921 - 20011118 COG Period of Service Under Review :Date of Enlistment: 20011119 Date of Discharge: 20050310 Length of Service (years, months, days): Active: 03 0322(Does not...