Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801967
Original file (ND0801967.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20080926
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)        19970307 - 19970511     Active:  

Period of Service Under Review:
 Date of Enlistment: 19970512     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000114      Highest Rank/Rate: FN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.00

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /C ONF :

NJP :
- 19981103 :       Art icle 113 ( Misbehavior of sentinel, s leeping on watch )
         Awarded : Susp ended :

- 19991118 :       Article 113 ( Misbehavior of sentinel, s leeping on watch )
         Awarded: Suspended:

- 19991215 :      Article 112a ( Wrongful use of controlled substance, marijuana )
         [Extracted from NAVPERS 1070/604, awards]
         Awarded: NFIR Suspended: NFIR

S CM :   SPCM:

C C :
- 19990328 :       Offense: Assault with a deadly weapon (brick)
         Sentence : Probation work furlough Fine $300.00, restitution $300.00

Retention Warning Counseling:
- 19981103 :      For misbehavior of a Sentinel.

- 19991118 :       For misbehavior of Sentinel.

NDRB Documentary Review Conducted (date):        20080530
NDRB Documentary Review Docket Number:   ND08-00667
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.


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 :

Pending results of hearing.
Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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 .





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

Applicant’s Issues

 1.        Youth and immaturity and personal problems mitigated to his misconduct
2.       His Under Other Than Honorable Conditions discharge was too harsh .
3. Post-service conduct.

Decision

Date : 2009 0928             Location: Washington D.C .        R epresentation :

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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, nonjudicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use of controlled substance, marijuana ) according to NAVDRUGLAB message R 39739Z Nov 99 confirmed positive for THC, Article 113 ( Misbehavior of sentinel, s leeping on watch ) 2 specifications , and a civilian arrest by the San Diego Police Department for: assault with a deadly weapon (brick) and sentence with probation work furlough, fine of $300.00, and restitution for $300.00. Certain serious offenses, warrant separation from the naval service in order to maintain good order and discipline—violation of Article 112a (Drug abuse) meets this standard. When processed for administrative separation, the Applicant waived his right to request an administrative discharge b oard, consult with a qualified counsel, and submit a written statement.

: (Decisional) ( ) . The Applicant contends his youth, immaturity and personal problems mitigated his misconduct. He provided no documentation or explanation in support of this claim. The Board determined the awarded discharge characterization was warranted .

Issue 2 : (Decisional) ( ) . The Applicant contends his discharge was too harsh , because he did not smoke any marijuana; he inhaled secondary smoke while driving in a car with two Sailors who were smoking marijuana . The Applicant did not submit any evidence to support his claim of secondary smoke. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy .

Issue 3 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration of an upgrade. The NDRB considers post-service conduct to determine of the misconduct committed during active duty was indicative of the Applicant’s character or an aberration. The Applicant provided some documentation relating to post-service conduct: a police report , a letter from an employer, a certificate of title for a vehicle, and a college transcript . The Board determined the evidence of post-service conduct was not sufficient enough to form a basis of relief. Based on the Applicant’s record of service, testimony, and insufficient post-service documentation, the NDRB determined an upgrade would be inappropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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 companies, or other financial institutions; attendance at or completion of higher education (official 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | 2008_Navy | ND0800667

    Original file (ND0800667.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 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. ” Additional...

  • NAVY | DRB | 2008_Navy | ND0801311

    Original file (ND0801311.rtf) Auto-classification: Denied

    Due to the nature of these violations the NDRB determined the awarded 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...

  • NAVY | DRB | 2010_Navy | ND1001465

    Original file (ND1001465.rtf) Auto-classification: Denied

    ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...

  • NAVY | DRB | 2010_Navy | ND1001209

    Original file (ND1001209.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 . 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...

  • USMC | DRB | 2010_Marine | MD1001827

    Original file (MD1001827.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 a document review has been conducted, former members are...

  • USMC | DRB | 2009_Marine | MD0902381

    Original file (MD0902381.rtf) Auto-classification: Denied

    Relief granted.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 the discharge was proper and equitable at the time of discharge.However, based on his post-service efforts, the awarded characterization was worthy of consideration. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.The...

  • NAVY | DRB | 2012_Navy | ND1201025

    Original file (ND1201025.rtf) Auto-classification: Denied

    Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.As for his in-service conduct, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and...

  • NAVY | DRB | 2003_Navy | ND03-01166

    Original file (ND03-01166.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.

  • 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...

  • NAVY | DRB | 2009_Navy | ND0902115

    Original file (ND0902115.rtf) Auto-classification: Denied

    The NDRB has no jurisdiction over reenlistment, reentry or reinstatement into the Navy, Marine Corps or any other of the Armed Forces, and is not authorized to change a reenlistment code.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” Additional Reviews : After a...