Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900909
Original file (ND0900909.rtf) Auto-classification: Denied

ex-QMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090305
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)        20011213 - 20020130     Active:  

Period of Service Under Review:
Date of Enlistment: 20020131     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030404      Highest Rank/Rate: QMSR
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 84
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214):      NDSM

Periods of UA (per DD 214) : 20030130-20030302 (32 DAYS) / CONF: 20030314-20030404 (21 DAYS) [Total 53 days]

NJP : S CM : SPCM: C C :

Retention Warning Counseling :

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-106, 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. Seeking r eenlistment opportunities .
2. Claims y outh and immaturity were mitigating factors .
Decision

Date : 20 0 9 081 0    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 : either an issue which the Board cannot form the ba sis 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, .

: (Decisional) ( ) . The Applicant contends his problems in the Navy can be attributed to mistake s he made due to being “very young and easily influenced by those I chose to surround myself. ” While he may feel his youth 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 or immaturity . The Applicant’s record of service included his acceptance of a Separation in Lieu of Trial by Court-Martial for violation of the Uniform Code of Military Justice : Article 86 (Unaut horized absence for a total of 32 days). This offense is considered serious , and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a spe cial or general court- martial ; however, his commander allowed him to separate administratively in lieu of trail . In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. As such, the Board presumed that the Applicant requested the discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant had a complete understanding of the negative consequences of accepting separation . By a vote of 4-1, 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 .

 The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .




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 | 2009_Navy | ND0900579

    Original file (ND0900579.rtf) Auto-classification: Denied

    The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The Board determined the characterization of service received, “General (Under 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...

  • NAVY | DRB | 2012_Navy | ND1201532

    Original file (ND1201532.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)19991109 - 19991208Active: Period of Service Under Review: Date of Current Enlistment: 19991209Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20030429Highest Rank/Rate:SM3Length of Service:Years Months21 DaysEducation Level:AFQT: 75EvaluationMarks:Performance:3.0(5)Behavior:2.2(5)OTA: 2.81Awards and Decorations (per DD 214):Pistol...

  • NAVY | DRB | 2009_Navy | ND0900309

    Original file (ND0900309.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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicant DD Form 293 and personal letter, no documentation was provided for review. Should the Applicant obtain additional...

  • NAVY | DRB | 2010_Navy | ND1000656

    Original file (ND1000656.rtf) Auto-classification: Denied

    Based on the offenses committed by the Applicant, command administratively processed for separation. ” 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...

  • NAVY | DRB | 2010_Navy | ND1000139

    Original file (ND1000139.rtf) Auto-classification: 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 eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of...

  • NAVY | DRB | 2009_Navy | ND0901252

    Original file (ND0901252.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 DD Form 293 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...

  • NAVY | DRB | 2014_Navy | ND1401352

    Original file (ND1401352.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his depression led to his misconduct.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 warranted.In...

  • NAVY | DRB | 2009_Navy | ND0901128

    Original file (ND0901128.rtf) Auto-classification: Denied

    The Board determined an upgrade or change would be inappropriate.Issue 2: (Decisional) (Equity) The NDRB is authorized to consider post-service factors in the recharacterization of a 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...

  • NAVY | DRB | 2010_Navy | ND1000956

    Original file (ND1000956.rtf) Auto-classification: Denied

    The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. The Applicant’s documented misconduct of record, coupled with a formal counseling advising him...

  • NAVY | DRB | 2015_Navy | ND1401685

    Original file (ND1401685.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...