Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900513
Original file (ND0900513.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20081231
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630650 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19870219 - 19870223     Active:            19870224 - 19900524

Period of Service Under Review:
 Date of Enlistment: 19900525     Age at Enlistment:
Period of E nlistment : Years 19 MONTHS Extension
Date of Discharge: 19950724      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 24
Evaluation M arks:         Performance: 3.6 ( 7 )      Behavior: 3.6 ( 7 )        OTA: 3.69

Awards and Decorations ( per DD 214):      (4) (2) (2)

Periods of UA /C ONF :

NJP :
- 19910711 : Art icle 86 (UA ) 2200, 19910626 to 0719, 19910627 (9 hours, 19 minutes)
 Article 87 (Missed ship’s movement)
 Awarded : Susp ended : ($400.00) (35 days)

S CM : SPCM: C C : Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

          CONTINUOUS HONORABLE ACTIVE SERVICE FROM 870224 UNTIL 900524 ”

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 Representat ion :    From Congress m ember :

Related to Post-Service Period (cont):

Oth er Documentation :

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996,
Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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. Discharge inequitable because based on one isolated incident in over 7 years of service.
2. Seeking to run for public office and open his own business in future and would like to have an unblemished record.
3. Us e d bad judgment , tested positive for drug s and accepted the other than honorable ( OTH ) in lieu of a court-martial due to
responsibilities as a father and husband.
4. Post service conduct.

Decision

Date: 20090320            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL.
Discussion

 : ( ) . The Applicant contends the discharge was inequitable because it was based on an isolated incident in over seven years of service. 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 contention his discharge was based on an isolated incident is refuted by the service record which was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, for 9 hours ) and Article 87 (Missing ship’s movement) and a request for an “Other Than Honorable Conditions” in lieu of a trial by court-martial for an admission to drug use which is a violation of Article 112a (Drug use) . The NDRB advises the Applicant certain serious offenses, even though isolated, 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 , grade or record of service . 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. The Applicant’s discharge was not based on one isolated incident since he had already been awarded NJP prior to accepting the OTH in lieu of a court-martial. Based on the seriousness of the offenses committed, the Applicant’s age, length of service and lack of mitigating evidence, the Board determined the awarded discharge was appropriate and an upgrade was not warranted.

Issue 2 -3 : (Equity) RELIEF NOT WARRANTED. The Applicant states h e is seeking an upgrade in order to open his own business and run for public office in the future ; he would like to have unblemished record to do so. He also claims he just used bad judgment in his decision to use drugs. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the narrative reason and / or characterization o f discharge if such a change is warranted. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. As discussed in Issue 1, desp ite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline : Violation of Article 112a is one such offense. Additionally, the Applicant’s desire to run for public office , start his own business or now obtain an unblemished military record is not sufficient grounds for a n upgrade. While the Applicant admits he displayed bad judgment and used drugs, his conduct while in the military form ed the primary basis for determining the character of his service and reflects his willful failure to meet the standards of expected conduct for a U. S. Sailor. The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.


Issue 4: ( ) . The Applicant desires an upgrade based on his post service conduct. He contends after being discharged he worked as a diesel mechanic and graduated from various schools. 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; 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.

While the Board applauds the Applicant’s post service efforts to date , the evidence of post-service conduct was not sufficient to warrant an upgrade. 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, “Under Other Than 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. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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 | ND0500249

    Original file (ND0500249.rtf) Auto-classification: Denied

    ND05-00249 Applicant’s Request The application for discharge review was received on 20041129. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.

  • NAVY | DRB | 2006_Navy | ND0601173

    Original file (ND0601173.rtf) Auto-classification: Denied

    Despite a servicemember’s prior record of service, certain serious offenses, though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Elements of Discharge: [INVOLUNTARY] Date Notified:NOT FOUND IN RECORDReason for Discharge Least Favorable Characterization Authorized: Date Applicant Responded to Notification: NOT FOUND IN RECORDRights Elected at Notification:Consult with Counsel Administrative Board SEPARATION CODE INDICATES BOARD...

  • NAVY | DRB | 2006_Navy | ND0600049

    Original file (ND0600049.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.000329: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse that such misconduct warranted separation, and...

  • NAVY | DRB | 2012_Navy | ND1200466

    Original file (ND1200466.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant is seeking to improve employment opportunities.2. 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...

  • NAVY | DRB | 2008_Navy | ND0801314

    Original file (ND0801314.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.At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. The Board determined an upgrade would be inappropriate.After a thorough review of the available...

  • USMC | DRB | 2010_Marine | MD1001494

    Original file (MD1001494.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Full relief to Honorable was not granted due to the seriousness of the offense and the seniority of the Applicant.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...

  • NAVY | DRB | 2005_Navy | ND0501523

    Original file (ND0501523.rtf) Auto-classification: Denied

    ND05-01523 Applicant’s Request The application for discharge review was received on 20050914. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. No indication of appeal in the record.Retention Warning: Advised of deficiency (Violation of UCMJ Article 86: Absence without leave, Violation of UCMJ Article 92: Failure to obey order or regulation, Violation of UCMJ Article 107: False official statement, Violation of UCMJ...

  • NAVY | DRB | 2008_Navy | ND0801630

    Original file (ND0801630.rtf) Auto-classification: Denied

    The Board determined based on the lack of documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable”, was an appropriate characterization considering the time served and the nature of the UCMJ violation involved.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and...

  • NAVY | DRB | 2008_Navy | ND0801753

    Original file (ND0801753.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19951012 - 19960825Active: Period of Service Under Review: Date of Enlistment: 19960826Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20000726Highest Rank/Rate:HNLength of Service: Years Months01 DayEducation Level:AFQT: 53EvaluationMarks:Performance:4.0(3)Behavior:3.6(3)OTA: 3.39Awards and Decorations (per DD 214):Periods of UA/CONF:...

  • NAVY | DRB | 2009_Navy | ND0901800

    Original file (ND0901800.rtf) Auto-classification: Denied

    Representation: By a vote of 3-2 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. The Board was split in its decision, voting 3-2 that the characterization awarded was warranted.Summary: After a thorough review of the available evidence, to include the...