Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901335
Original file (ND0901335.rtf) Auto-classification: Denied

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

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020715 - 2002110 3     Active:  

Period of Service Under Review:
Date of Enlistment: 20021104     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080429      Highest Rank/Rate: HM3
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.16

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20080401 :       Art icle 86 (UA) , 6 specifications
         Spec 1: 0730 – 0735, 20071029 ( 5 minutes)
         Spec 2: 0715 – 0717, 20071030 ( 2 minutes)
         Spec 3: 0545, 20071031
         Spec 4: 0715 – 0900, 20080117 ( 105 minutes)
         Spec 5: 0715 – 0735, 20080122 ( 20 minutes)
         Spec 6: 0715 – 1100, 20080214 ( 225 minutes)
         Article 91 (Insubordinate conduct toward noncommissioned officer or petty officer) , 2 specifications
         Awarded : Susp ended :

- 20080415 :       Article 86 (UA) , 2 specifications
         Spec 1: 1000 – 1003, 20080402 ( 3 minutes)
         Spec 2: 0600 – 0624, 20080405 ( 24 minutes)
          Article 107 (False official statement )
         Awarded: Suspended: vacated

S CM :   SPCM:   CC:

Retention Warning Counseling :

- 200 7 0 109 :       For failure to meet physical fitness test stand ards .
- 20080402 :       For violation of Article 86 and Article 91.
- 20080415 :       For unsuitability for continued active duty service in the Navy due to your Personality Disorder.
- 20080415 :       For s uspension of reduction to the next inferior pay grade is hereby vacated due to continued misconduct.
- 20080421 :       For violation of Article 86 (UA) and Article 107 (False official statement).

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 11, effective 26 April 2005 until Present, 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 91 (Insubordinate conduct toward noncommissioned officer or petty officer) and Article 107 (False official statement) .




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

Applicant’s Issues

 1.        I was told by my CO and XO that I would receive a medical discharge.
2.       The discharge p rocess that had taken place was unfair; I have served the Navy without any priors and 110% of my effort.

Decision

Date : 2009 1210             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 included NAVPERS 1070/613 (Page 13) warnings and nonjudicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, 8 specifications ranging from 2 minutes to 4 hours), Article 91 ( Insubordinate conduct toward a noncommissioned officer or petty officer , 2 specifications, storming out of the office before being properly dismissed while receiving counseling and telling her superior petty officer “I’m always this way, so deal with it” and “You need to watch who you talk about and you need to watch your back” or words to that effect) , and Article 107 ( False official statement, “I never sent text message to HM2 N**** about frequent meetings with CMC,” which statement was totally false) . Based on the offense s committed by the Applicant, command administratively processed for separation. When processed for administrative separation , the Applicant waived rights to consult with qualified counsel, submit a wri tten statement, and request an a d ministrative discharge b oard.

: (Decisional) ( ) . The Applicant contends she w as told by her commanding officer and executive officer that she would be receiving a medical discharge because her psychiatrist and the directo r of medicine said she was over medicated. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence to support this contention. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. In reviewing the Applicant’s misconduct, the NDRB determined that h er violations and h er retention warning did not appear to have anything to due with being over medicated .

: (Decisional) ( ) . The Applicant contends that “ the p rocess that had taken place was unfair; I have served the Navy without any priors and 110% of my effort. ” T he Applicant was notified in writing of her administrative separation for misconduct due to commission of a serious offense (violation of Article 107) and convenience of the government, personality disorder, as recommended by her mental health provider o n 10 and 18 April 08. Per regulations, s eparation for personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). For the Applicant ’s edification , a service member may be separated, regardless of her rank or record of service, based on commission of a serious offense when the offense warrants separation and the offense would warrant a punitive discharge. The statements and documents provided 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 she 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, medical and service 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 | 2001_Navy | ND01-00883

    Original file (ND01-00883.rtf) Auto-classification: Denied

    I recommend RMSR (applicant) be discharged from the naval service with an Other Than Honorable Discharge.... The applicant had four separate NJP convictions for misconduct to include assault, drunk and disorderly, unauthorized absence (31 days UA), willfully disobeying a superior commissioned officer, failure to obey orders and regulations, incapacitated to assume her duties, false official statement and breaking restriction. Evidence of continuing educational pursuits, an employment...

  • NAVY | DRB | 1999_Navy | ND99-01161

    Original file (ND99-01161.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 000522. 931201: Applicant to unauthorized absence 0715, 1Dec93.931206: Applicant apprehended by civil authorities and charge with 4 counts of failure to appear (5 days).931217: Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by your service record and civilian conviction as evidenced by...

  • NAVY | DRB | 2005_Navy | ND0500239

    Original file (ND0500239.rtf) Auto-classification: Denied

    ND05-00239 Applicant’s Request The application for discharge review was received on 20041117. PART I - APPLICANT’S ISSUES AND DOCUMENTATION _______________________________________________________________________ In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.The SR is incomplete.

  • NAVY | DRB | 2005_Navy | ND0501068

    Original file (ND0501068.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.

  • NAVY | DRB | 2010_Navy | ND1000744

    Original file (ND1000744.rtf) Auto-classification: Denied

    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 reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2003_Navy | ND03-00793

    Original file (ND03-00793.rtf) Auto-classification: Denied

    ND03-00793 Applicant’s Request The application for discharge review was received on 20030403. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to medical substance abuse. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE B.

  • NAVY | DRB | 2010_Navy | ND1000907

    Original file (ND1000907.rtf) Auto-classification: Denied

    There is no requirement, or law, that grants re-characterization of a discharge solely on the issue of making a former service member eligible for Veterans' educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. ” 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 | 2006_Navy | ND0600455

    Original file (ND0600455.rtf) Auto-classification: Denied

    Therefore, an expeditious separation is highly recommended.970812: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by your violation of the UCMJ, Article 92, willful dereliction in the performance of duties 970628 and violation of a lawful general regulation on 970224; Article 107 (2 Specs), false official...

  • NAVY | DRB | 2007_Navy | ND0700133

    Original file (ND0700133.rtf) Auto-classification: Denied

    86 – [Unauthorized absence (2 specs)]; Viol of UCMJ Art 107 – (False official statement). ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.

  • NAVY | DRB | 2002_Navy | ND02-01027

    Original file (ND02-01027.rtf) Auto-classification: Denied

    ND02-01027 Applicant’s Request The application for discharge review, received 020715, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:None PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 990730 - 991004 COG Active:...