Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901334
Original file (ND0901334.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20090421
Characterization of Service Received:
Narrative Reason for Discharge: (CIVIL CONVICTION)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030131 - 20030921     Active:  

Period of Service Under Review:
Date of Enlistment: 20030922     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070405      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.84

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :    SCM:    SPCM:            Retention Warning Counseling :

C C :
- 20070110 :       Offense: Assault / M isdemeanor [Information found via U.S. Naval Criminal Investigative Service report d td 20070111]
         Sentence : C onf 360 days Suspended: C onf for 330 days

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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       .

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 was unfair, because personal problems impaired my ability to serve.
2. My efficiency rating marks were good.

Decision

Date : 2009 1217             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (CIVIL CONVICTION) .
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 Board found no evidence in t he Applicant’s record of service of any retention warnings, non- judicial punishments ( NJPs ) , or court-martials. The Applicant did have a civil conviction, base on her arrest on Oct 2006 . She was c harge d with m alicious wounding (stabb ing) against a household member and found guilty of the charge by the court of Juvenile and Domestic Relations District Court, Norfolk, Virginia. The Applicant was s en tence d to 365 days confinement ( of which 330 was suspended). P er her commanding o fficer ’s letter: “ Po lice reports were nor available, b ased upon the ser iousness of the offense and misconduct. ” Due to the commission of a serous offense involving a civilian conviction , m embers may be separated when the offense would warrant a punitive discharge per the Manual for Courts-Martial (MCM), appendix 12 for the same or closely related offense , the specific circumstances of the offense warrant separation , or civil sentence includes confinement for 6 or more months without regard to suspension probation or early release . Based on the offense committed, processing for administrative separation wa s mandatory. When processing for administrative separation, the Applicant elected to consult with qualified counsel, but waived her rights to a hearing before an administrative discharge board or submit a written statement . Based on this conditional waiver, she was awarded a general discharge vice an under other than honorable conditions discharge .

: (Decisional) ( ) . The Applicant contends her time in service was good and her discharge was unfair, and it was due to personal problems which impaired her ability to serve. For the edification of the Applicant, a service member may be separated, regardless of her rank or record of service, based on the serious ness of the offense when the offense warrants separation and the offense would warrant a punitive discharge. The statements by the Applicant do not refute the presumption of regularity in this case. The Applicant was provided the opportunity to present h er case to an administrative discharge board, but waived that right . Based upon available records, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of disciplin e in the United States Navy. The NDRB determined the awarded character of service was warranted and the narrative reason for discharge was appropriate.

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 (CIVIL CONVICTION) .

 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 | 2011_Navy | ND1101729

    Original file (ND1101729.rtf) Auto-classification: Denied

    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 Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2013_Navy | ND1300708

    Original file (ND1300708.rtf) Auto-classification: Denied

    Relief denied.4: (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. 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.

  • NAVY | DRB | 2013_Navy | ND1300219

    Original file (ND1300219.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to enhance career opportunities and to reenlist into the Armed Forces.2. Based on the civil conviction, 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...

  • USMC | DRB | 2011_Marine | MD1101925

    Original file (MD1101925.rtf) Auto-classification: Denied

    However,after excluding the misconduct for which she was subsequently acquittedpost-service and based on the remaining misconduct of record (NJP for UA; 6105 retention warning, and civil conviction), the Board determined that partial relief in upgrading her discharge to General (Under Honorable Conditions) was warranted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at...

  • NAVY | DRB | 2012_Navy | ND1201567

    Original file (ND1201567.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends her characterization of service can be a hindrance in the job arena.2. ” 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. There is no requirement or law that grants...

  • NAVY | DRB | 2011_Navy | ND1101343

    Original file (ND1101343.rtf) Auto-classification: Denied

    Upon conclusion of the hearing, the Senior Member of the ASB forwarded the findings to the Applicant’s Commanding Officer as follows: (By 3-0 vote) via a preponderance of the evidence, the Applicant committed Misconduct- Serious Offense and Misconduct- Civil Conviction; (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge due to Misconduct.The Applicant was separated from the Navy on 28...

  • NAVY | DRB | 2013_Navy | ND1301357

    Original file (ND1301357.rtf) Auto-classification: Denied

    Her command refused to refer the charges to a court-martial, and in a separate decision, decided to initiate administrative separation procedures for Misconduct (Serious Offense). ” 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 authority to upgrade a discharge for the sole...

  • NAVY | DRB | 2014_Navy | ND1400585

    Original file (ND1400585.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • NAVY | DRB | 2014_Navy | ND1401350

    Original file (ND1401350.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 remainUNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).The Applicant remains eligible for a...

  • NAVY | DRB | 2014_Navy | ND1401350 (14)

    Original file (ND1401350 (14).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 remainUNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).The Applicant remains eligible for a...