Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801345
Original file (ND0801345.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20080605
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) 20040617 - 20040628                 Active:

Period of Service Under Review:
Date of Enlistment: 20040629     Period of E nlistment : 4 Years Extension        Date of Discharge: 20070328
Length of Service : 2 Y ear s 9 M onth s 29 D a ys      Education Level: 12       Age at Enlistment: 18 AFQT: 38
Highest Rank /Rate :       E-3       Evaluation M arks: Performance:   NFIR      B ehavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
20050929 : Art icle 117 (Provoking speech)
 Awarded : Susp ended :

20061214 : Art icle 78 (Accessory after the fact)
Article 92 (Failure to obey a lawful order by consuming alcohol while underage)
Article 107 (False official statement)
Awarded : Susp ended :

Retention Warnings:
20051005: For NJP for provoking speech

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

         Other Documentation (Describe) :


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

Applicant’s Issues

 1. Would like to reenlist.
2. Did not understand his discharge at time of separation .

Decision

Date : 20 08 1016        Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .
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 , specifically the paragraph concerning , regarding .

: ( ) . The Applicant claims he did not understand his discharge at the time of his separation . 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 Ap plicant’s service was marred by a two NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Articles 78 (Accessory after the fact); Article 92 (Failure to obey a lawful order – underage drinking); Article 107 (False official statements); and Article 117 (Provoking speech ). These are considered serious violations, some which carry a maximum penalty of a Dishonorable Disc harge and up to 5 year s of imprisonment if adjudicated and awarded as part of a sentence by a special or general court martial . The command did not pursue a punitive discharge but opted instead for an administrative discharge. Additionally, the Applicant’s discharge paperwork also states commission of a serious offense as a reason for his administrative separation.

For the information of t he Applicant , OPNAVINST 5350.4C directs that c ommands shall process for administrative separation all members considered to be alcohol rehabilitation treatment failures . A treatment failure is defined as a ny serious alcohol incident occurring at any time during a member’s career subsequent to treatment . The Applicant was notified on 17 April 2007 he was being administratively separated for Pattern of Misconduct, Commission of a Serious Offense and Alcohol Rehabilitation failure. The Applicant initialed the Administrative Separation Processing Notification (NAVPERS 1910/32) acknowledging the least favorable characterization of service possible for his discharge could be a “General (Under Honorable Conditions)”. It was the Applicant’s responsibility to ask for clarification if he did not understand the discharge proceedings. He waived his rights to see council and to make a statement. Based upon the record, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipl ine in the United States Navy. The Board determined an upgrade would be inappropriate.

Af ter a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, the Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE.
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 .


Pertinent Regulation/Law

 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 s 92, and 107.

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 or is referred to a court martial 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | 2009_Navy | ND0900151

    Original file (ND0900151.rtf) Auto-classification: Denied

    The Applicant has requested an upgrade in his discharge characterization to “Honorable”. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and was not indicative of those receiving an “Honorable” discharge characterization. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing,...

  • 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 | 2011_Navy | ND1101979

    Original file (ND1101979.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade for service benefits.2. Based on the offenses committed by the Applicant, command administratively processed for separation. ” 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...

  • NAVY | DRB | 2009_Navy | ND0900557

    Original file (ND0900557.rtf) Auto-classification: Denied

    The Board determined this issue was insufficient to justify the Applicant’s misconduct and clemency was not warranted. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization considering the...

  • NAVY | DRB | 2010_Navy | ND1000757

    Original file (ND1000757.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 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 conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the...

  • NAVY | DRB | 2009_Navy | ND0902362

    Original file (ND0902362.rtf) Auto-classification: Denied

    On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). 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...

  • NAVY | DRB | 2012_Navy | ND1200250

    Original file (ND1200250.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. 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. Additionally, the NDRB does not have the authority to...

  • NAVY | DRB | 2010_Navy | ND1000476

    Original file (ND1000476.rtf) Auto-classification: 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 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...

  • NAVY | DRB | 2008_Navy | ND0801275

    Original file (ND0801275.rtf) Auto-classification: Denied

    The Board noted, since discharge, the Applicant has demonstrated a strong commitment to community and excellence and determined his post service conduct was sufficient enough to warrant an upgrade to “General (Under Honorable Conditions).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...

  • NAVY | DRB | 2011_Navy | ND1100779

    Original file (ND1100779.rtf) Auto-classification: Denied

    The Applicant appeared before an Administrative Separation Board (ASB) on 09 July 2001. ” 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 sole purpose of enhancing reenlistment opportunities.