Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901149
Original file (ND0901149.rtf) Auto-classification: Denied

ex-ASAN, USN
Current Discharge and Applicant’s Request
Application Received: 20090325
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)        20011220 - 20020821     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020822     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050105      Highest Rank/Rate: ASAN
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.01

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :     NJP :     S CM :    SPCM:

ARREST:

- 20041201:      Charges: Assault and criminal restraint. Court date 20050203.

- 20041219:      Charges: Violation of condition of release. Court date 20050119.
C C :

- 20050119 :       Court date scheduled after date of discharge.

- 20050203 :      Court date scheduled after date of discharge.

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 /To Representat ion :            From /To 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 April 2005, Article 1910-142, SEPARATION 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 128 (Assaults other than simple) .



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

Applicant’s Issues

 1.        Seeking to reenlist.
2.       Isolated case in 28 months without other adverse action.
3.        In-service performance .
Decision

Date: 20 0 9 1022             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 reflects that he was arrested twice and charged with assault and criminal restraint and violation of conditions of release while in the state of Maine . Additionally, the Commander’s (Patrol and Reconnaissance Wing Five ) letter of 11 January 2005 indicates the following: 1) the Applicant was pending mast for multiple charge s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Una u thorized absences (UAs) of unknown duration ) , Article 92 (Failure to obey a lawful order), and Article 134 ( specific offenses unknown) , 2) due to the Applicant’s involvement with the civilian courts over a three month period made it impossible to take him to mast , 3) he was arrested on 1 December 2004 for assault and criminal restraint of a female Sailor with whom he was having an extra marital relationship, 4) he was arrested two additional times for violating the conditions of release when he was seen with the victim and failed to appear in court. Based on the offenses committed by the Applicant, his command administratively processed him for separation due to the commission of a serious offense . When notified for Administrative Separation Processing, the Applicant elected right s to consult with qualified counsel and submit a written statement . The Applicant did not elect a General Court-Martial Convening Authority (GCMA) review.

: (Nondecisional) The Applicant made a statement on his DD Form 293, requesting another opportunity to be a part of the greatest military and nation. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

Issues 2 -3: (Decisional) ( ) . The Applicant is requesting an upgrade to Honorable and contends his discharge was inequitable because it was an isolated case and did not cause any other adverse actions at the time. The Applicant further contends that he made many contributions while in service and submitted in-service records for the Board’s consideration . Despite a servicemember’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. The record of evidence as previously discussed refutes the Applicant’s contention that his discharge was based on an isolated incident and indicates that the Applicant was pending mast for numerous violations of the UCMJ. Additionally, he was charged in the civilian court for assaulting another female with whom he was having inappropriate relations. The Board reviewed the evidence of record and evidence presented by the Applicant and determined that an upgrade to Honorable is not warranted taking into consideration the seriousness and frequency of the misconduct committed by the Applicant and his failure to comply with orders of the civilian court . Additionally, the Board determined the Applicant’s in-service performance did not mitigate the misconduct which resulted in his discharge.

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.

 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

  • USMC | DRB | 2011_Marine | MD1100018

    Original file (MD1100018.rtf) Auto-classification: Denied

    Sentence: 3 years formal probation, $200.00 fine, and $200.00 restitutionRetention Warning Counseling: 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 Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From...

  • NAVY | DRB | 2009_Navy | ND0902444

    Original file (ND0902444.rtf) Auto-classification: Denied

    Based on the Applicant’s record of service, the NDRB determined the Applicant’s misconduct was not an isolated incident anddiscerned no inequity in the characterization of the Applicant’s service.Issue 3: (Decisional) () . ” 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. Additionally, the NDRB has no...

  • NAVY | DRB | 2008_Navy | ND0801252

    Original file (ND0801252.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 | 2011_Navy | ND1102093

    Original file (ND1102093.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade in order to qualify for the G.I. Relief denied.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 .The Applicant remains eligible...

  • NAVY | DRB | 2010_Navy | ND1000812

    Original file (ND1000812.rtf) Auto-classification: Denied

    20 September 2004, Commander, Navy Personnel Command (Separation Authority) directed that the Applicant be separated for MISCONDUCT (Commission of a Serious Offense) – having agreed that the evidence of record supported the factual basis for discharge and that the characterization of service, as recommended, was warranted. Based on a review of the evidence and the circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements...

  • NAVY | DRB | 2009_Navy | ND0902270

    Original file (ND0902270.rtf) Auto-classification: Denied

    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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.Summary: After a thorough review of the available evidence, to include the...

  • NAVY | DRB | 2013_Navy | ND1301597

    Original file (ND1301597.rtf) Auto-classification: Denied

    Based on the offense committed by the Applicant, command administratively processed for separation. 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 failed to appear at his personal appearance hearing, therefore, he is not eligible for further...

  • NAVY | DRB | 2010_Navy | ND1001126

    Original file (ND1001126.rtf) Auto-classification: Denied

    The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially one of his length of service, and falls short of what is required for an upgrade.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded...

  • NAVY | DRB | 2006_Navy | ND0601112

    Original file (ND0601112.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Discharge Process: NOT FOUND IN RECORDDate Notified:Reason for Discharge:Least Favorable Characterization: Date Applicant Responded to Notification: NOT FOUND IN RECORDRights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)GCMCA Review Administrative Board Date: NOT FOUND IN RECORDCommanding Officer Recommendation (date): NOT FOUND IN RECORDDischarge directed by (date):NOT FOUND IN RECORD Reason...

  • USMC | DRB | 2007_Marine | MD0700356

    Original file (MD0700356.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 Summary of Service Prior Service: Inactive: USMCR (DEP)20010910 - 20010916Active: Period of Service Under Review: Date of Enlistment: 20010917Years Contracted:Date of Discharge:20050407 Length of Service: 03 Yrs 06Mths21 DysLost Time:Days UA: Days Confined: Education Level: Age at...