Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900903
Original file (ND0900903.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090304
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19950526 - 19950726     Active:  

Period of Service Under Review:
Date of Enlistment: 19950727     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970410      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.83

Awards and Decorations ( per DD 214):      NEM

Periods of UA /C ONF :

NJP :
- 19961007 :       Art icle 86 ( Failure to go to appointed place of duty )
         Article 92 (Failure to obey order or regulation)
         Awarded : Susp ended :

- 19961206 :       Article 86 ( Failure to go to appointed place of duty )
         Article 92 (Dereliction of dut ies)
         Awarded : Susp ended:

- 19970215 :       Article 86 ( Failure to go to appointed place of duty )
          Article 86 (Absence without leave)
         Article 92 (Dereliction of duties)
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 19961008 :       For Commanding Officer’s NJP for violation of Article 86, failure to go to appointed place of duty and Article 92, failure to obey order or regulation




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 14, effective 3 October 1996 until
11 December 1997), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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. Injured his back while in the military and as a Navy veteran is seeking to obtain medical benefits.
2. Admits he “messed up” but had a lot of stress and mental issues that caused his problems .

Decision

Date: 20090716             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.
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/or the reason for discharge if such change is warranted. 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 se rvice record includes three non judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (Unauthorized absences – 1 specification and Failure to go to appointed place of duty – 3 specifications), and Article 92 (Dereliction of duty – 2 specifications and Failure to obey a lawful order or r egulation). Per the Commander, Submarine Squadron 8 , Administrative Board Procedure l etter of 28 February 1997, the Applicant was notified that he was being considered for an administrative separation by reason of misconduct due to the Commission of a Serious Offense and a Pattern of Misconduct as evidenced by all of his NJPs during this current enlistment. The Applicant signed the Administrative Board Procedure Acknowledgment on 04 March 1997 and waived all of his rights except the right to obtain copies of documents that would be forwarded to the separation authority. He was subsequently discharged based on a Patter n of Misconduct and assigned an “ Other Than Honorable ” characterization of service a s directed by Commander Submarine Group 2, General A dministrative Message of 31 March 1997.

: (Nondecisional) The Applicant contends he is in pain daily due to a back injur y he sustained while underway , and as a Navy veteran is in need of medical services . T his is an issue which 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 and , for additional information regarding this issue .
: (Decisional) () . The Applicant admits to “messing up” but contends his discharge should be upgraded because “I had a lot of issues mentally and they nerves caused me all my problems.” There is no medical documentation in the record nor provided by the Applicant to support the contention that he suffers from a service-related back injury or mental/nervous condition and that such conditions were the cause of his misconduct. The medical records were requested but not available for review. Therefore, the presumption of regularity was applied in this case. Based on a review of the record, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service based on the short duration of the unauthorized absences and the nature of the offenses committed. The Board voted unanimously to upgrade the characterization of service to General (Under Honorable Conditions). However the NDRB determined the narrative reason to be most appropriate based on the three NJPs and one retention warning awarded to the Applicant.
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 However, the Board determined there was sufficient evidence to support a discharge due to a Pattern of Misconduct. 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 | ND0801592

    Original file (ND0801592.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 | 2009_Navy | ND0901704

    Original file (ND0901704.rtf) Auto-classification: Denied

    The NDRB determined the Applicant met the requirements for separation by reason of misconduct – pattern of misconduct and the awarded characterization of service was warranted.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...

  • NAVY | DRB | 2008_Navy | ND0801186

    Original file (ND0801186.rtf) Auto-classification: Denied

    However, taking into consideration the Applicant’s testimony, testimony of his brother, service record, offenses committed, length of service,and post-service conduct the Board voted unanimously to upgrade the characterization of service to General (Under Honorable Conditions), but the narrative reason shall remain Pattern of Misconduct.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 | 2010_Navy | ND1000895

    Original file (ND1000895.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand administrative separation 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...

  • USMC | DRB | 2009_Marine | MD0902481

    Original file (MD0902481.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement, orto request a hearing before an administrative discharge board.The NDRB had a copy of the Applicant’s administrative separation package as well as the Applicant’s acknowledgement of rights in response to the pending administrative separation.The Applicant provided no documentation to rebut the government’s presumption of...

  • NAVY | DRB | 2008_Navy | ND0801180

    Original file (ND0801180.rtf) Auto-classification: Denied

    Based on the severity and frequency of offenses committed by the Applicant and the lack of mitigating factors, the Board determined the “Under Other Than Honorable” discharge was the most appropriate characterization of service and 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...

  • NAVY | DRB | 2009_Navy | ND0900532

    Original file (ND0900532.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 | 2010_Navy | ND1000961

    Original file (ND1000961.rtf) Auto-classification: Denied

    Based on the seriousness of the offense and the pattern of misconduct established by the misconduct of record, the Command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. ” Additional...

  • USMC | DRB | 2009_Marine | MD0900355

    Original file (MD0900355.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate and an upgrade wouldbe inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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...

  • USMC | DRB | 2009_Marine | MD0901311

    Original file (MD0901311.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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. ...