Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801533
Original file (ND0801533.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080716
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)      19990111 - 19990119              Active:

Period of Service Under Review:
Date of Enlistment: 19990120      Period of E nlistment : Years Extension          Date of Discharge: 19991022
Length of Service : Y ear s M onth s 28 D a ys     Education Level:        Age at Enlistment:      AFQT: 52
Highest Rank /Rate :       AR        Evaluation M arks: Performance:    NFIR      Behavior: NFIR OTA: NFIR
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF : 19990519-19990520 (1 day)
19990529-19990628 (31 days)
 19990630-19990902 (65 days)

NJP :
- 19990915 : Art icle 86 (UA , more than 30 days ) 3 specifications
Awarded : , , Susp ended :

S CM : SPCM: C C : Retention Warnings:

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. Reenlistment opportunity.
2. Time in service less than 6 months.
Decision

Date: 20 08 1030             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 .

Issue 2 : ( Propriety ) RELIEF NOT WARRANTED. The Applicant states he should have received an ‘ U ncharacterized’ discharge characterization because he served less than 180 days on active duty. For the information of the Applicant, separations for misconduct take precedence over potential separations for other reasons. 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 Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command improperly characterized his discharge characterization.
The Applicant’s record of service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, more than 30 days). Violations of Article 86 are considered a serious offense for which a punitive discharge and confinement is authorized 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.

An uncharacterized discharged is warranted for members who have 180 days or less of contin u ous active duty service unless separation for misconduct is authorized and whe n a characterization of “Under Other Than Honorable Conditions” is warranted. Accordingly, the Applicant’s separation was processed in strict compliance with the Navy Personnel Manual (reference A of Pertinent Regulation/Law).

 An “U nder O ther T han H onorable ” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member . T he Board acknowledges the Applicant’s misconduct constitutes a significant departure f r om that expected of a Sailor and determined the awarded 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 submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec ember 19 97 until 29 Mar ch 20 00, Article 1910-142 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 86 (more than 30 days) .


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 | 2009_Navy | ND0900187

    Original file (ND0900187.rtf) Auto-classification: Denied

    The NDRB determined the Applicant’s separation was appropriate considering the length of service and the UCMJ violation involved.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...

  • NAVY | DRB | 2008_Navy | ND0800711

    Original file (ND0800711.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 | 2008_Navy | ND0801613

    Original file (ND0801613.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 Pertinent Regulation/Law A. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the...

  • NAVY | DRB | 2008_Navy | ND0801604

    Original file (ND0801604.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 conduct mitigates the reason for the characterization of discharge.The Applicant submitted a statement with his DD-293 Application claiming employment, education efforts, and participation in his church and in other community service. The Board determined the characterization...

  • NAVY | DRB | 2008_Navy | ND0801579

    Original file (ND0801579.rtf) Auto-classification: Denied

    The Applicant’s command determined this was the appropriate characterization of service based on his service record. Due to the serious nature of the Applicant’s misconduct and poor judgment in communicating the true state of the situation, 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:...

  • NAVY | DRB | 2009_Navy | ND0900121

    Original file (ND0900121.rtf) Auto-classification: Denied

    ” 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. 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,...

  • NAVY | DRB | 2008_Navy | ND0801592

    Original file (ND0801592.rtf) Auto-classification: Denied

    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...

  • NAVY | DRB | 2008_Navy | ND0801836

    Original file (ND0801836.rtf) Auto-classification: Denied

    The Applicant did not identify any Issues upon which the Board could consider to recharacterize his discharge other than his request to change to discharge characterization to “General (Under Honorable Conditions) ” . ” 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. Additionally, the NDRB does not have the authority to change a...

  • NAVY | DRB | 2013_Navy | ND1301778

    Original file (ND1301778.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20000113 - 20000119Active: Period of Service Under Review: Date of Current Enlistment: 20000120Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20010427Highest Rank/Rate:SMSALength of Service:Year(s)Month(s) 01 Day(s)Education Level:AFQT: 32EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NONEPeriods of...

  • NAVY | DRB | 2009_Navy | ND0900180

    Original file (ND0900180.rtf) Auto-classification: Denied

    The Applicant contends he is entitled to clemency because the punishment adjudged was too harsh for his misconduct. The NDRB determined the awarded discharge characterization was within the parameters established by the Navy for the Article 86 violation in question and clemency was not warranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the...