Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801667
Original file (ND0801667.rtf) Auto-classification: Denied

ex-LCDR, USN
Current Discharge and Applicant’s Request
Application Received: 20080806
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: NONE                                                         Active: USNR     19900511 - 19911022 HON

Period of Service Under Review:
Date of Enlistment: 20070127     Age at Enlistment: 38
Period of E nlistment : INDEF
Date of Discharge: 20071120      Highest Rank/Rate: LCDR
Length of Service :        Active: 16 Y ear s 08 M onth s 13 D a ys
         Inactive: 0 0 Y ear s 0 0 M onth s 01 D a y
Education Level:
Evaluation M arks: Performance: 4.0 ( 1 ) Behavior: 1.0 ( 1 ) OTA: 2.67

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) (2) ICM NRSR JSAM AFRSM (*M device), Gold Wreath awards(5)

Periods of UA /C ONF : S CM : SPCM: C C : Retention Warning Counseling :

NJP: 1
 - 20070613 : Article 92 (Failure to obey orders or regulations )
Article 133 (Conduct unbecoming an Officer)
 Awarded : (WRITTEN) Susp ended:

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 :

Oth er Documentation :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.



Pertinent Regulation/Law (cont)

 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 s of the UCMJ, Article 92 (Failure to obey orders or regulations ) and Article 133 (Conduct unbecoming an Officer).



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

Applicant’s Issues

 1. Inequitable discharge based on an isolated incident .

Decision

Date : 20 08 1211   Location: Washington D.C .        R epresentation :

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

 : ( ) . The Applicant contends her discharge should be upgraded based on her 17 years of service which was good apart from a single period of misconduct. The Applicant should be aware that d espite a Sailor’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the Navy in order to maintai n proper order and discipline. 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 submitt ed by the Applicant. The Applicant’s record of service was marred by a NJP f or violation s of the U niform C ode of M ilitary J ustice (UCMJ): Article 92 (Failure to ob ey an order or regulation) and Article 1 33 (Conduct unbecoming an Officer , wrongful fraterniz ation and committed adultery ). These violations are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did n ot refer the Applicant for a puniti ve discharge but opted instead for an administrative discharge.

The Applicant has requested an upgrade in h er characterization to “Honorable”. For the edification of the Applicant , w hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “G eneral ( U nder H onorable C onditions) ” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Board determined t he Applicant’s conduct, which forms the primary basis for determining the character of service, reflect ed a significant departure from the conduct expected of a service member and an officer; the awarded characterization was appropriate and an upgrade would be inappropriate.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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. Outstanding post-service conduct, 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 u nder review, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; marriage and children’s birth certificate (if applicable); character witness statements; 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; and documentation of a drug free lifestyle. 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’s statement on the DD Form-293, she provided only documents that related to her discharge To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. 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 | 2011_Navy | ND1100347

    Original file (ND1100347.rtf) Auto-classification: Denied

    Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 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 15 October 1981.B. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion The NDRB, under its...

  • USMC | DRB | 2008_Marine | MD0801072

    Original file (MD0801072.rtf) Auto-classification: Denied

    The CA, per the requirements set out in paragraph 4003 of MCO P5800.16A (Marine Corps Manual for Legal Administration) forwarded the report of NJP to CMC (JAM), with the recommendation the applicant's letter of resignation be accepted and the Applicant be discharged with a “ General (Under Honorable Conditions)” characterization of service. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by...

  • NAVY | DRB | 2011_Navy | ND1100224

    Original file (ND1100224.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, 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 post-service conduct establishes a reason to change the characterization or narrative reason. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s...

  • NAVY | DRB | 2008_Navy | ND0800361

    Original file (ND0800361.rtf) Auto-classification: Denied

    From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant has requested an upgrade based on performance while on active duty. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Discharge Process and evidence submitted by the Applicant, the

  • NAVY | DRB | 2008_Navy | ND0801953

    Original file (ND0801953.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 19720616 - 19720628 Active enlisted: 19720629 – 19740828 USMC 19740829 – 19750411 USMCR19750412 – 19781201 USAR 19790915 – 19830909 USNR 19830910 – 19850908 USNR 19850909 – 19870429 USNR Period of Service Under Review: Date of Commission: 19870430Age: 33Years Contracted: Indefinite Date of Discharge: 20020702Highest Rank: LCDRLength of Service: 15 Year(s)...

  • USMC | DRB | 2009_Marine | MD0900005

    Original file (MD0900005.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 19841026 - 19850826 Active: 19850827 - 1988121219881213 - 1992110619960112 - 19970130 Period of Service Under Review: Date of Commission: 19970131Age at Commission: Period of Commission: Indefinite Date of Discharge: 20050731 Highest Grade: CHIEF WARRANT OFFICER (W3) Length of Service: Years Months01 Days Education Level: AFQT: 43 MOS: 2100 Fitness Reports:...

  • USMC | DRB | 2010_Marine | MD1002026

    Original file (MD1002026.rtf) Auto-classification: Denied

    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. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall UNACCEPTABLE CONDUCT.Discussion The NDRB,...

  • NAVY | DRB | 2013_Navy | ND1300351

    Original file (ND1300351.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...

  • USMC | DRB | 2008_Marine | MD0800191

    Original file (MD0800191.rtf) Auto-classification: Denied

    :() .The Applicant presents letters of reference, documentation of community service, work history, and proof of non-criminal activity to support his request for an upgrade based on post service conduct.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the...

  • NAVY | DRB | 2009_Navy | ND0902629

    Original file (ND0902629.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/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...