Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801957
Original file (ND0801957.rtf) Auto-classification: Denied

ex-AZAR, USN
Current Discharge and Applicant’s Request
Application Received: 20080929
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)      20010720 - 20010923     Active:  

Period of Service Under Review:
Date of Enlistment: 20010924     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030912      Highest Rank/Rate: AZAN
Length of Service : Y ear M onth s 19 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks: Performance: 1.67 ( 3 ) Behavior: 2.00 ( 3 ) OTA: 2.18

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : SCM: S PCM: CC:

NJP :
- 20030215 : Art icle 134 ( Indecent acts with another )
Awarded : Susp ended :

- 20030302 : Article 134 ( Breaking r estriction )
Awarded: Susp ended : ( Vacation of suspension 20030302)

- 200303 24 : Article 134 (Breaking r estriction) 13 Specifications
Awarded: CONF Suspended:

- 20030 4 2 4 : Article 92 ( Disobeying a lawful order )
 Article 107 (Falsifying an official statement) 3 Specifications
Awarded: Suspended: NONE
- 20030 4 2 8 : Article 134 (Breaking Restriction) 2 Specifications
 Awarded: CONF Suspended: NONE

Retention Warning Counseling :

- 20030215 : Article 134 ( Indecent acts with another )

- 20030 32 4 : Article 134 ( Breaking r estriction )

- 200304 24 : Article 94 ( Failure to obey a lawful order )
Article 107 ( False official s tatement ), 3 specifications

- 200304 28 : Article 134 ( Breaking r estriction )


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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

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, Article 107, and Article 112a .




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

Applicant’s Issues

 1. Education opportunities.
2 . Mitigating circumstances.

Decision

Date: 20 0 9 0129             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 , regarding .

Issue 2: ( ) . The Applicant contends circumstances mitigated his misconduct. Specifically, the Applicant contends his separation from his son and the court battle for custody of his son contributed to his misconduct. 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 four retention warnings and five NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order); Art icle 107 (False official statement); Article 134 (Breaking restriction); and Article 134 (Indecent acts). The Applicant was discharged for violation of Article 112a ( Drug use, w rongful use or possession of a controlled substance). The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.

Other than his statement on the DD-293 form, the Applicant provides no documentation or evidence in support of his upgrade request. Additionally, the Applicant failed to provide documented information he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. T he Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. The NDRB determined the awarded discha r ge 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


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 | 2011_Marine | MD1101611

    Original file (MD1101611.rtf) Auto-classification: Denied

    Clemency 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...

  • USMC | DRB | 2009_Marine | MD0900067

    Original file (MD0900067.rtf) Auto-classification: Denied

    The Applicant remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of discharge. ” 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...

  • NAVY | DRB | 2009_Navy | ND0900498

    Original file (ND0900498.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 | ND0801671

    Original file (ND0801671.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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;...

  • USMC | DRB | 2009_Marine | MD0900493

    Original file (MD0900493.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall COURT-MARTIAL.Discussion : The Applicant is seeking an upgrade to general (under honorable conditions) in order to obtain disability benefits for himself and family. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and statement of the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case...

  • NAVY | DRB | 2010_Navy | ND1000904

    Original file (ND1000904.rtf) Auto-classification: Denied

    It also included summary courts-martial for of the UCMJ: Article 86 (Unauthorized absence, 12 specifications) and Article 134 (Breaking restriction, 2 specifications).Based on the offenses committed by the Applicant, command administratively processed for separation.When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. Relief denied.Summary:...

  • NAVY | DRB | 2008_Navy | ND0801237

    Original file (ND0801237.rtf) Auto-classification: Denied

    A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.Due to the significant negative aspects in the Applicants record of service, the Board determined thatthe medical evaluations were sufficient enough to only support an upgrade in the discharge characterization to “ General (Under Honorable...

  • NAVY | DRB | 2006_Navy | ND0601094

    Original file (ND0601094.rtf) Auto-classification: Denied

    Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation None. Elements of Discharge: [INVOLUNTARY] Discharge Process: ADMINISTRATIVE BOARD PROCEDUREDate Notified:20040804Reason for Discharge:MISCONDUCT - Least Favorable Characterization: Date Applicant Responded to Notification: 20040804Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)Administrative Discharge Board date: NOT...

  • NAVY | DRB | 2010_Navy | ND1000221

    Original file (ND1000221.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. Summary: After a thorough...

  • NAVY | DRB | 2006_Navy | ND0601185

    Original file (ND0601185.rtf) Auto-classification: Denied

    ex-GSMFR, USNND06-01185Current Discharge and Applicant’s Request: Application Received: 20060908Characterization of Service: Narrative Reason for Separation: OTHER PHYSICAL/MENTAL CONDITIONS-PERSONALITY DISORDERSDischarge Authority: MILPERSMAN3620200Last Duty Assignment/Command at Discharge: USS O’BANNON (DD 987)Applicant’s Request: Characterization change to: Narrative Reason change to: Review Requested: Representation: Decision: Date of Decision: 20070628 Location of Board: Washington D.C....