Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801407

Original file (ND0801407.rtf) Auto-classification: Denied

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20080818

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: SECNAVINST 1920.6B

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

Summary of Service

Prior Service:
Inactive: US N (US Naval Academy) Start date NFIR - 20040527          Active:

Period of Service Under Review:
Date of Appointment: 20040528    Years Contracted : Years Months         Date of Discharge: 20070131
Length of Service: Years Months 04 D ays      Education Level:       Age at Enlistment:
Highest Rank: Officer’s Fitness reports: the Board for review.
Awards and Decorations (per DD 214): NONE

                                                      Discharge Process

20060525 : NJP Viol ation of UCMJ Art icle 92 ( Failure to obey order or regulation )
                           Article 133 ( Conduct unbecoming and officer and gentleman )
                           Article 134 ( Pandering and prostitution )
Awarded : FOP $ 1200 for 2 months ; Reprimand; Restr iction for 30 days

20060525 : Amphibious Group Three endorsed Report of and provided copy to Applicant for comment.

20060525 : Amphibious Group Three forwarded Report of Misconduc t to Commander, Naval Personnel
Command recommending Applicant for retention.

20060814 : Commander, Naval Personnel Command, notified Applicant of requirement to show cause.

20060921 : Applicant submitted

20061106 : Commander, Naval Personnel Command, recommended to the Assistant Secr etary of the Navy (Manpower and
Reserve Affairs) that with characterization of service as “Under Other
Than Honorable Conditions”

U ndated : Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of
Misconduct , with characterization of service as “Under Other Than Honorable Conditions ” .

20070131 : Applicant discharged .

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 Rec ords:

Related to Post-Service Period (cont):

         Family/Personal Status:          Community Service:                References:
Additional Statements :
From Applicant:        From Representat ion :    From Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present , establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 s 92, 133, 134 .

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

Applicant’s Issues

1. Rejoin the Navy.
2. Did not have a fair trial.
3 . Insufficient representation by legal officer.

Decision

Date: 20 08 1023 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 , specifically the paragraph concerning s , regarding .

: ( ) . The Applicant contends he is entitled to an upgrade of his discharge because
he did not get a fair trial and was not guilty of all the charges against him. In reviewing discharges, the Board presumes
regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumptio n, to include
evidence submitted by the Applicant. The Applicant’s record of service was marred by a NJP for violation s of the Uniform
Code of Military Justice (UCMJ): Articles 9 2 (Failure to obey order or regulation), Article 133 (Conduct unbecoming and
officer and gentleman), and Article 134 (Pandering and prostitution) . Violation s of Article 92, Article 133, and Article 134 are
considered serio us offense s , punishable by punitive discharge and confinement if adjudicate d 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
admi nistrative discharge.

The NDRB n oted the Applica nt voluntarily waived his right to consult with a lawyer and accepted no n-judicial punishment
on 15 May 2006. By accepting NJP the Applicant lost the right to trial by court-martial where the b urden of proof of
misconduct is much higher and the ability to mount a defense is substantially greater. If the Applicant felt a t the time he was
not guilty of the charges against him, he should have refused non-judicial punishment and demanded trial by court-martial.

The NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he did not receive adequate legal assistance from his military lawyer, specifically he does not feel as if he g o t “a fair shot at staying.” The NDRB noted on 14 September 2006 the Applicant voluntarily waived his right to a Board of Inquiry, where he would have been given the opportunity to state his case for retention in the naval service. The Applicant voluntarily requested to resign his commission on 21 September 2006. The NDRB determined 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 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 | 2008_Navy | ND0801172

Original file (ND0801172.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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...
NAVY | DRB | 2014_Navy | ND1401213

Original file (ND1401213.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2013_Navy | ND1300060

Original file (ND1300060.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends youth and immaturity contributed to his misconduct. 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...
NAVY | DRB | 2010_Navy | ND1000813

Original file (ND1000813.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Nondecisional issues:The Applicant seeks an upgrade in the characterization of his discharge and a change to his reentry code in order to further his prospect of reenlistment in the United States Army, thereby facilitating a better opportunity to provide for himself and his family and be a more productive member in society. The Applicant completed two years and four months of...
NAVY | DRB | 2011_Navy | ND1101981

Original file (ND1101981.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. 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...
NAVY | DRB | 2010_Navy | ND1000940

Original file (ND1000940.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. ” Additional Reviews : After...
NAVY | DRB | 2013_Navy | ND1301712

Original file (ND1301712.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive: USN (Nurse Candidate Program) 20040108 - 20050421 Active: Period of Service Under Review: Date of Appointment: 20050422Age: 20Years Contracted: Indefinite Date of Discharge: 20091031 Highest Rank: LTJGLength of Service: Year(s) Month(s) 10 Day(s) Education Level: AFQT: NFIROfficer’s Fitness reports: AvailableAwards and Decorations (per DD 214):Pistol Periods of UA/CONF: NJP:-...
NAVY | DRB | 2015_Navy | ND1500035

Original file (ND1500035.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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...
NAVY | DRB | 2012_Navy | ND1200121

Original file (ND1200121.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to:Convenience of the Government Summary of ServicePrior Service: Inactive: USN (ROTC) 20080724 - 20090122 Active: Period of Service Under Review: Date of Appointment: 20090123Age: Years Contracted: IndefiniteDate of Discharge: 20110131 Highest Rank: ENSLength of Service: 2 Year(s) Month(s) 08 Day(s)Education Level: AFQT: NFIROfficer’s Fitness reports: AvailableAwards and Decorations (per DD 214):Rifle Pistol Periods of...
NAVY | DRB | 2008_Navy | ND0800628

Original file (ND0800628.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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...

Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801407

Similar Decisions