Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801825
Original file (ND0801825.rtf) Auto-classification: Denied

ex-ETI, USN
Current Discharge and Applicant’s Request
Application Received: 20080903
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) 19910228 - 19910423        Active: 19910424 – 19950624 HONORABLE
19950625 – 20010419 HONORABLE

Period of Service Under Review:
Date of Enlistment: 20010420     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071016     Highest Rank/Rate: E-6
Length of Service : 16 Y ear s M onth s 23 D a ys
Education Level: 12      AFQT: 85
Evaluation M arks: Performance: 3.67 ( 3 ) Behavior: 1.67 ( 3 ) OTA: 3.68 (5)

Awards and Decorations ( per DD 214): Rifle Pistol (2x) (5x) (2x) (5x) MUC (4x) ESWS MOUSM AAM

Periods of UA /C ONF : NJP : SC M: S PCM: NONE
C C :

- 20060911 :      Offense: Disorderly conduct and public drunkenness.
         Sentence : Unknown

Retention Warning Counseling :

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ Medical Record:                  Other Records:
Copies of emails between the Applicant and LL JG J L-W; pages from the MILPERMAN ; copies of MPOs

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 :

                           - Letter from Senator J . B . U. S. Senate

Oth er Documentation :


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

Applicant’s Issues

 1. Desires change in separation code in order to obtain separations pay.
2. M ilitary P rotection O rder (MPO) was not valid.
3. Received poor legal advice .
4. Pressured into accepting his discharge.

Decision

Date: 20 08 1218         Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COMMISSION OF A SERIOUS OFFENSE .
Discussion

 : The Applicant desires a change in his separation code so he can obtain separations pay. 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 , r egarding . The Applicant will need to petition the Board for Correction of Naval Records (BCNR) for correction in his separation code and possible reimbursement of separations pay. Additionally, the Applicant can contact the Defense Finance and Accounting Service (DFAS) at 1-800-962-0648 for further guidance on separations pay assistance.

Issues 2 - 4 : ( ) . 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’s record of service was marred by violating a MPO barring him from seeing his wife, issued by the Municipal Court of the City of Biloxi, Mississippi. This MPO was originally in place for 30 days and then extended for another 30 days. The Applicant states the MPO which he violated was not valid since it was not signed by his commanding officer, only by himself. T he MPO violations and his drunk and disorderly civilian conviction were the basis of his discharge. He claims he was given bad legal advice concern ing his discharge by his lawyer. Finally, t he Applicant states he was coerced into accepting a “ General (Under Honorable Conditions) discharge and he did not fully understand the gravity of his separations code at the time of his discharge. He also alleges Block 26 of his DD - 214, Separations Code, was blank when he signed his DD - 214 . Despite the absence of a signature by the commanding officer, it is presumed by the fact the Applicant signed the MPO , it was presented to him by someone in his chain of command as an extension of the first MPO and he was verbally adm onished not to have contact with his wife. By his own admission, he continued to see his wife despite acknowledging the existence of the MPO.

In a series of emails provided by the Applicant in his package his military lawyer repeatedly explains the Applicant’s disciplinary and discharge options and the ramifications of them. The tone does not appear to pressure or coerce the Applicant to make a certain decision. He provides no evidence that she gave him improper legal advice. The Applicant could have insisted his case be heard at a court- martial ; however, he voluntarily accepted the administrative discharge over a trial by court-martial.

All separating service members are required to attend transition classes where the importance of the DD - 214 is explained. After almost 17 years of active duty , where at some point he would have supervised junior sailors who were leaving active duty , it is assumed the Applicant had some understanding of the DD - 214 form . It is also assumed an experienced and older individual knows better than to sign a form containing blanks. Finally, the Applicant provides no evidence or statement by a witness to support the allegation block 26 of the DD- 214 was blank when he signed it. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, 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 .
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 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

  • USMC | DRB | 2014_Marine | MD1400264

    Original file (MD1400264.rtf) Auto-classification: Denied

    The Assistant Secretary of the Navy (Manpower and Reserve Affairs), acting under the authority granted to him by the Secretary of the Navy, approved the recommendation for separation presented by the Applicant’s command.The Applicant provided evidence of multiple requests mast applications during this period of service. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board...

  • NAVY | DRB | 2013_Navy | ND1300059

    Original file (ND1300059.rtf) Auto-classification: Denied

    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 reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • USMC | DRB | 2008_Marine | MD0800804

    Original file (MD0800804.rtf) Auto-classification: Denied

    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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that Pertinent Regulation/Law A. ” Additional Reviews : Subsequent to...

  • NAVY | DRB | 2013_Navy | ND1301589

    Original file (ND1301589.rtf) Auto-classification: Denied

    On 10 June 2011, the Applicant’s command notified him of administrative separation processing for “Separation by reason of misconduct - commission of a serious offense as evidenced by the Military Protective Order of 13 May 2011 and Jacksonville Sheriff’s Office report of 24 May 2011.” The NDRB determined he was properly notified of administrative separation processing for Misconduct (Serious Offense) based upon his finding of guilt at NJP on 10 June 2011 for violating UCMJ Article 90 based...

  • USMC | DRB | 2008_Marine | MD0801898

    Original file (MD0801898.rtf) Auto-classification: Denied

    The Applicant’s medical record shows the Applicant was seen by medical personnel regularly, especially between December 2006 and June 2007 when his NJP and SCM were held, for a variety of reasons including a required mess duty physical, physical ailment and mental health treatment. Less than a week into his restriction, Private Greene drank alcohol (despite being on restriction), attempted to drive a vehicle while intoxicated, and was in a car accident before he reached the exit of the...

  • USMC | DRB | 2009_Marine | MD0900718

    Original file (MD0900718.doc) Auto-classification: Denied

    You knowing and willingly accepted an unauthorized phone call thus violating a Military Protection Order. 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 Representation: From Congress member: Other...

  • USMC | DRB | 2014_Marine | MD1401799

    Original file (MD1401799.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: Pertinent Regulation/Law A. DEPARTMENT OF THE...

  • USMC | DRB | 2015_Marine | MD1500321

    Original file (MD1500321.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: Pertinent Regulation/Law A. Paragraph 6210,...

  • USMC | DRB | 2012_Marine | MD1200789

    Original file (MD1200789.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 | 2011_Navy | ND1100547

    Original file (ND1100547.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 employment opportunities, to become eligible for the GI Bill, and to re-enlist.2. 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...