Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0800657
Original file (ND0800657.rtf) Auto-classification: Denied

ex-BMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080219
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19880711 - 19890705              Active:          19890706 - 19930620 HON
                                                                                          19930621 - 19960905 HON
Period of Service Under Review:
 Date of Enlistment: 19960906      Period of enlistment : Years Extension          Date of Discharge: 19970502
Length of Service : Yrs Mths 27 D ys      Education Level:         Age at Enlistment:       AFQT: 27/35
Highest Rank /Rate : BMSN   Evaluation marks: Performance: 2.0 ( 1 )     Behavior: 1.0 ( 1 )          OTA: 2.00
Awards and Decorations ( per DD 214): , NEM , (3) , , , , JMUA

Periods of UA /C ONF :

NJPs :    
         19911015: Art 128 (Assault)                                                            Awarded- FOP, RIR, REST
19950411: Art(s) 92 (Failure to obey) ; 107 (False Offic ial Statements) ; 134 (Assault)    Awarded-FOP, RIR, REST


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. Rejoin Military .

Decision

Date : 20 08 0530             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 .

The Applicant’s record of service was marred by for violations of UCMJ Articles 92 ; 107 ; 128 ; and 134 and one unadjudicated violation of Article 112a (Illegal use of a controlled substance). Violations of Articles 92 ; 107 ; 128 ; and 134 are considered serious offenses, punishable by a bad conduct or dishonorable discharge and up to imprisonment. The Applicant requested discharge for the good of the service to escape trial by court-martial. In the request , the Applicant noted his rights were thoroughly explained to him and he waived his right to consult counsel . Furthermore, the Applicant admitted guilt to the charges preferred against him. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his action s. The Board determined a n upgrade or change 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. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until
11 December 1997, 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 92, 107, 128, and 134.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 | 2005_Navy | ND0500143

    Original file (ND0500143.rtf) Auto-classification: Denied

    ND05-00143 Applicant’s Request The application for discharge review was received on 20041029. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. PART I - APPLICANT’S ISSUES AND DOCUMENTATION

  • USMC | DRB | 2008_Marine | MD0800965

    Original file (MD0800965.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall SEPERATION IN LIEU OF TRIAL BY COURTS-MARTIAL.Discussion : This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned. 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...

  • NAVY | DRB | 2008_Navy | ND0801757

    Original file (ND0801757.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.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...

  • NAVY | DRB | 2008_Navy | ND0801671

    Original file (ND0801671.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions;...

  • NAVY | DRB | 2009_Navy | ND0900309

    Original file (ND0900309.rtf) Auto-classification: Denied

    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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicant DD Form 293 and personal letter, no documentation was provided for review. Should the Applicant obtain additional...

  • NAVY | DRB | 2009_Navy | ND0900172

    Original file (ND0900172.rtf) Auto-classification: Denied

    The NDRB determined the Applicant’s contention isagain without merit and an upgrade would be inappropriate.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...

  • NAVY | DRB | 2007_Navy | ND0700942

    Original file (ND0700942.rtf) Auto-classification: Denied

    Date: 20080103Location:Washington D.C Representation: Discussion Issues 1 -2: 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’s service was marred by one discharge warning and two non-judicial punishments for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey a direct order), Article 107 (False Official Statement), Article...

  • NAVY | DRB | 2008_Navy | ND0801237

    Original file (ND0801237.rtf) Auto-classification: Denied

    A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.Due to the significant negative aspects in the Applicants record of service, the Board determined thatthe medical evaluations were sufficient enough to only support an upgrade in the discharge characterization to “ General (Under Honorable...

  • NAVY | DRB | 2008_Navy | ND0801856

    Original file (ND0801856.rtf) Auto-classification: Denied

    The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)”. The NDRB determined the Applicant’s repeated serious misconduct were properly considered in determining the characterization of his service and the awarded discharge characterization was appropriate; an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence...