Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900161
Original file (ND0900161.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20081029
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MILPERSMAN Article 3630600 (COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP) 19930209 - 19930425        Active:  

Period of Service Under Review:
 Date of Enlistment: 19930 4 26     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960909      Highest Rank/Rate: OS3
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: 3.8 ( 1 )      Behavior: 3.8 ( 1 )        OTA: 3.80

Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA /C ONF :

NJP :
- 19951116 : Art icle 86 (UA ) 0745-0815, 19951102 (30 minutes)
Awarded : Susp ended :

- 1996040 4 : Article 91 (D isobeying a direct order )
Article 134 (Communicating a threat)
Awarded: Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling:

- 19940509 :       For personal behavior .
- 19940627 :      For lateness in manning his Sea and Anchor Station.

 - 19940628 :      For personal behavior.

- 19940711:      For personal behavior .

- 19940718 :      For personal behavior .

- UNDATED:       For private indebtedness and responsibilities.
- 19940925 :     For personal behavior around SN.

 - 19941115 :     For personal behavior.
Retention Warning Counseling: (cont)
- 19941116 :     For personal behavior.

- 19941118:     For performance and responsibilities.
- 19941206:     For private indebtedness.
- 19941207:      For responsibilities.
- 19950113:     For private indebtedness.
- 19950715:     For responsibilities.
- 19950814:     For personal behavior.
- 19950930:     For performance, personal behavior and responsibilities.

- 19951016:     For performance and personal behavior.

- 19960424:     For private indebtedness.
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 9, effective 22 July 1994 until 2 October 1996,
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 86 (U A) , Article 91 (Disobeying a direct order) and Article 134 (Communicating a threat).




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

Applicant’s Issues

 1. Discharge too severe for the offenses, which most were minor in nature.
2. Immaturity .
3. Post- s ervice conduct.

Decision

Date: 20 0 9 0416             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 his discharge was too severe for the offenses, which were mostly minor in nature. 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 eighteen (18) retention warnings for performance, personal behavior, private indebtedness and responsibilities ; and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A) , Article 91 (Disobeying a direct order) and Article 134 (Communicating a threat). While the Applicant may believe he only committed minor infractions, violations of Article 91 and Article 134 (Communicating a threat) are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. The Board determined the awarded discharge was appropriate for the nature and number of the offenses committed and an upgrade would be inappropriate.

: ( ) . The Applicant contends his problems in the Navy can be attributed to mistakes he made due to immaturity. While he may feel his immaturity was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth and immaturity. Again, 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 provided no documentation to support his claim. Additionally, it was noted the Applicant was 23 years old when he committed his Article 91 and Article 134 violations. The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.
: ( ) . The Applicant contends his post-service conduct has been exemplarily and he has become a productive citizen in his community. 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 companies, or other financial institutions; attending 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 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 only provided a character reference dated 27 May 1999, which was written almost ten years ago. Although the Applicant states he programmed computers in Japan for three years ; was a professional golfer for four years; owned and operated Kelley’ s Sports Bar in Leland, North Carolina ; is a Manager and Member of Check Raise, LLC; and just opened Business Connex Design Center in Wilmington, North Carolina the Board is unable to substantiate his claims due to lack of documentation. The Board does recognize Kelley’s Sports Bar does exist in Leland , North Carolina but was unable to derive any specific facts about it concerning the ownership or operation . T he Board , by and large, relies on verifiable information and valid documentation presented by the Applicant as evidence , not just statements . The Board applauds the Applicant’s post service efforts if he indeed accomplished all the tasks stated. However, t o warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented . The Applicant could have produced additional evidence as stated in the below paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited 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, 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 | 2005_Navy | ND0500960

    Original file (ND0500960.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. No indication of appeal in the record.941202: Retention Warning from USS CALIFORNIA (CGN 36): Advised of deficiency (Violation of the Uniform Code of Military Justice Articles 86 (Failure to go to appointed place of duty) and 90 (Willful disobedience of a superior commissioned officer), notified of corrective actions and assistance available, advised of consequences of further...

  • NAVY | DRB | 2009_Navy | ND0900950

    Original file (ND0900950.rtf) Auto-classification: Denied

    By a unanimous vote of 5-0, the Board determined the characterization of service received, “Under Other Than Honorable Conditions,” and the narrative reason for the discharge; “Misconduct,” shall remain as issued considering the length of service and the UCMJ violations involved.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, theBoard found ADDENDUM: Information for...

  • NAVY | DRB | 2008_Navy | ND0801473

    Original file (ND0801473.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant requested for the NDRB to consider his post-service conduct in support of his request for an upgrade in his characterization to “Honorable.” Besides the Applicant’s statement on the DD Form 293, he provided an additional character reference and other post-service related documents on his behalf. appropriate based on the Applicant’s post-service conduct.After a...

  • NAVY | DRB | 2007_Navy | ND0700434

    Original file (ND0700434.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “ 99 JUN 08 ” “UNDER OTHER THAN HONORABLE CONDITIONS ” “ PATTERN OF MISCONDUCT ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD...

  • NAVY | DRB | 2006_Navy | ND0601082

    Original file (ND0601082.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:20020311Reason for Discharge Least Favorable Characterization: Date Applicant Responded to Notification: 20020311Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)GCMCA Review Recommendation of Commanding Officer (date): 20020313 Discharge directed by (date):COMCRUDESGRU 20020315Narrative reason directed:Characterization directed: Date Applicant...

  • NAVY | DRB | 2008_Navy | ND0800848

    Original file (ND0800848.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 conduct mitigates the reason for the characterization of discharge. The Board determined an upgrade was not warranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by...

  • NAVY | DRB | 2007_Navy | ND0700035

    Original file (ND0700035.rtf) Auto-classification: Denied

    Complete Service Record: YES Complete Medical Record: NOComplete Discharge Package: YES Regarding propriety, the Board found the discharge: Regarding equity, the Board found the discharge: Issue 1 (Equity): The Applicant contends that his misconduct while in the Navy is attributable to his youth and immaturity at the time. Elements of Discharge: [INVOLUNTARY] Date Notified:19950726Reason for Discharge - - Least Favorable Characterization Authorized: Date Applicant Responded to...

  • NAVY | DRB | 2008_Navy | ND0801969

    Original file (ND0801969.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20011031 - 20020704Active: Period of Service Under Review: Date of Enlistment: 20020705Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20041028Highest Rank/Rate:ABEANLength of Service: Years Months17 DaysEducation Level:AFQT: 70EvaluationMarks:Performance:3.0(3)Behavior:1.6(3)OTA: 2.55Awards and Decorations (per DD 214):Periods of UA/CONF:...

  • NAVY | DRB | 2013_Navy | ND1300840

    Original file (ND1300840.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 | 2006_Navy | ND0600303

    Original file (ND0600303.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). While the Board acknowledges the Applicant’s testimony, the Applicant failed to provide any post-service documentation for the Board to consider. 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