Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801834
Original file (ND0801834.rtf) Auto-classification: Denied

ex-ITSA, USN
Current Discharge and Applicant’s Request
Application Received: 20080905
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: USNR (DEP) 19990915 - 19991130        Active:

Period of Service Under Review:
 Date of Enlistment: 19991201      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20011116      Highest Rank/Rate: ITSN
Length of Service: Year Months 16 D ays
 Education Level: NFIR    AFQT: NFIR
 Evaluation Marks: Performance: 3.0 (1) Behavior: 1.0 (1) OTA: 2.33

 Awards and Decorations (per DD 214):

Periods of UA/CONF: SCM: SPCM: CC:

NJP:
- 20010904 :      Article 91 (Willful disobedience), 2 specifications
         Article 92 (Failure to obey an order or regulation)
         Awarded:

         - 20011031 :       Article 86 (Willful to go to appointed place of duty), 11 specifications
         Article 91 (Disrespectful to deportment toward a petty officer)
         Article 92 (Dereliction in the performance of duties)
         Awarded: Partially extracted from CO’s letter dated: 20011213

Retention Warning Counseling: 1
 -20001013: For violation of Article 92
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ JKA ”
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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 Documentation:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 violations of the UCMJ; Article 86 (Unauthorized absence), Article 91 (Willful disobedience/disrespect towards a Petty Officer) and Article 92 (Failure to obey an order or regulation).



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

Applicant’s Issues

 1. Discharge was unfair because he passed his division’s inspections.
2. Claims because he report sexual advances to him by a senior chief he was discharged.

Decision

Date: 20090107        Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS) .
By a vote of the Narrative Reason shall MISCONDUCT.
Discussion

 : ( ) . The Applicant claims his discharge was unfair because he passed his division inspections. 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 is marred by a retention warning for failure to obey rules and regulations, and two NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 91 (Willful disobedience/disrespect towards a Petty Officer) and Article 92 (Failure to obey an order or regulation). These violations are considered serious offenses punishable by punitive discharge or confinement 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. It is unclear to the Board how his division’s inspections were connected to his discharge as no documentary evidence was provided by the Applicant. The Applicant was discharge for a pattern of misconduct which was documented by his receiving a retention warning and 2 NJP’s are identified above. Without further substantial evidence, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
Issue 2: (Equity) RELIEF NOT WARRANTED. The Applicant claims allegations a senior chief made sexual advances to him and when he reported these, he was taken to captain’s mast. The Applicant’s service record does not have any documented evidence supporting this claim, nor does the Applicant provide anything to support his claim of sexual harassment. As such, the Board determined it is without merit and the awarded discharge characterization issued for a pattern of misconduct 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 under 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; completion of higher education (transcripts) 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 Applicants statement on the DD Form 293, he failed to provide additional documents or evidence on his behalf. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “General (Under Honorable


Conditions)”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the lack of post service documentation provided 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, provided 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 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, 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.
Employment/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 | ND0900655

    Original file (ND0900655.rtf) Auto-classification: Denied

    The Board determined the statements of post-service conduct alone did not support an upgrade in his discharge characterization. ” 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 narrative reason for separation to one indicating a medical disability or other medical...

  • NAVY | DRB | 2009_Navy | ND0900461

    Original file (ND0900461.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided 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...

  • NAVY | DRB | 2008_Navy | ND0801802

    Original file (ND0801802.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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.As stated above, the Applicant provided no post service documentation. After a thorough review of the available evidence, to include the...

  • NAVY | DRB | 2008_Navy | ND0801287

    Original file (ND0801287.rtf) Auto-classification: Denied

    The Applicant contends his characterization of service should be upgraded because his discharge was unjust and lacking evidence. However, there is no evidence in the records available for review, nor has the Applicant produced any evidence or medical documentation to support the contention he was misdiagnosed by military medical personnel. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is...

  • USMC | DRB | 2007_Marine | MD0700067

    Original file (MD0700067.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Date Notified: 19940831Basis for Discharge: due to: Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification: 19940902 Rights Elected at Notification:Consult with Counsel Obtain Copies of DocumentsSubmit Statement(s) (date) Administrative Board (19941011)Commanding Officer Recommendation (date): (19940902)SJA review (date): (19941114)Separation Authority (date): COMMANDING GENERAL, 3D MARINE...

  • USMC | DRB | 2012_Marine | MD1201464

    Original file (MD1201464.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 | 2011_Navy | ND1100533

    Original file (ND1100533.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...

  • NAVY | DRB | 2011_Navy | ND1100438

    Original file (ND1100438.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant believes he had personality adjustment issues. 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...

  • NAVY | DRB | 2011_Navy | ND1100276

    Original file (ND1100276.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. DEPARTMENT OF THE NAVYNAVAL...

  • NAVY | DRB | 2009_Navy | ND0901288

    Original file (ND0901288.doc) Auto-classification: Denied

    ex-ETSR, USN Current Discharge and Applicant’s Request Application Received: 20090409 Characterization of Service Received: Narrative Reason for Discharge: (SERIOUS OFFENSE) Authority for Discharge: MILPERSMAN Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP) 20050126 - 20050608 Active: Period of Service Under Review: Date of Enlistment: 20050609 Age at Enlistment: Period of Enlistment: Years Extension Date of...