Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800198

Original file (ND0800198.rtf) Auto-classification: Denied

ex-MM2, USN

Current Discharge and Applicant’s Request

Application Received: 20071106

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19970905 -              Active:
Period of Service Under Review:
Date of Enlistment: 19980901      Period of enlistment : Years Extension          Date of Discharge: 20020903
Length of Service : Yrs Mths 2 D ys       Education Level:         Age at Enlistment:       AFQT: 80
Highest Rank /Rate : MM2    Evaluation marks: Performance: 3.5 ( 4 )     Behavior: 3.5 ( 4 )          OTA: 3.31
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA /C ONF :

NJPs :
         20020805 : Art(s) 87, 86, 134 . Awarded - Susp -

Retention Warnings : NONE FOUND IN RECORD

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. VA Benefits
2. Service record and due to homosexuality, should get nothing less than honorable
3 . Post Service

Decision

Date: 20 08 0228 Location: Washington D.C R epresentation :

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

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 .

Issue 2: ( ). The Applicant implies that she worked to the best of her ability in the Navy and believes that due to her homosexuality that she should not receive anything less than an honorable discharge. The Board found that the Applicant was notified and administratively processed for separation due to the commission of a serious offense. Any issues with homosexuality are based on the Applicant’s statement alone. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled h er o ut for ridicule or discipline based on homosexuality or misconduct . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

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. There is credible evidence in the record that the Applicant committed misconduct. The evidence of record does not demonstrate that the Applicant was not responsible for h er conduct , that s he should not be held accountable for h er actions . 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 nonjudicial punishment (NJP) for violation of the Un i form Code of Military Justice (UCMJ), Article 78 (Accessory after the fact), Article 86 (Unauthorized absence), and Article 134 (Incapacitated for duty ) . A v iolation of Article 78 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate .

Issue 3: (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided her statement and the statements of three other commenting on her character and employment as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and educational pursuits . The Board determined that the documentation provided by the Applicant did not mitigate 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

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142 [formerly 3630605], 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 .

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 78.

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 | ND0800659

Original file (ND0800659.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 | 2011_Navy | ND1101229

Original file (ND1101229.rtf) Auto-classification: Denied

On 6 Jun 2007, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Homosexual Admission. ” 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...
NAVY | DRB | 2003_Navy | ND03-00666

Original file (ND03-00666.rtf) Auto-classification: Denied

The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to misconduct. MM2 P_ pleaded guilty at summary court-martial on 22 June 2000 to violating a general order by engaging in hazing activities on board USS ENTERPRISE. Accordingly, I recommend that MM2 P_ be discharged from the naval service for homosexual conduct with a characterization of other than...
NAVY | DRB | 2009_Navy | ND0900709

Original file (ND0900709.rtf) Auto-classification: Denied

This admission, in conjunction with the fraudulent entry into the country, placed the U. S. Navy in a negative light.Per Military Personnel Manual (MILPERSMAN) 1910-148, characterization of service is based on a member’s record of service in cases of homosexual conduct with no evidence (including admissions) or aggravating circumstances.For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military...
NAVY | DRB | 2008_Navy | ND0800049

Original file (ND0800049.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 | 2009_Navy | ND0900384

Original file (ND0900384.rtf) Auto-classification: Denied

Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.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 Board determined the characterization of service received, General (Under Honorable Conditions), was an appropriate characterization considering the length of...
NAVY | DRB | 2011_Navy | ND1100800

Original file (ND1100800.rtf) Auto-classification: Denied

Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries,and the administrative separation process, the Board found Accordingly, and pursuant to the guidance set forth in the Under Secretary of Defense (Personnel & Readiness) Memorandum (Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code), dated 20 Sep 2011, the awarded characterization of service shall and the narrative reason...
NAVY | DRB | 2013_Navy | ND1301077

Original file (ND1301077.rtf) Auto-classification: Denied

However, as a result of the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repeal of “Don’t Ask, Don’t Tell,” service discharge review boards should normally grant requests to change the characterization of the discharge to Honorable where Homosexual Admission was the only basis for discharge. Therefore, the NDRB voted to upgrade the Applicant’s characterization to Honorable.Narrative Reason for Separation: In accordance with the 20 September...
NAVY | DRB | 2009_Navy | ND0902638

Original file (ND0902638.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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
NAVY | DRB | 2012_Navy | ND1200172

Original file (ND1200172.rtf) Auto-classification: Denied

I recommend he be separated from the Naval Service with an Under Other Than Honorable characterization of service.” On 5 Feb 2009, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Homosexual Conduct (Acts). Since the Applicant’s service records do not contain the evidence contained within the NCIS investigation reports or from the testimony presented at NJP, the NDRB could not review...

Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0800198

Similar Decisions