Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901406
Original file (ND0901406.rtf) Auto-classification: Denied

ex-OSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090427
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)        19960516 - 19961104     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19961105     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970826      Highest Rank/Rate: OSSN
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NA   Behavior: NA     OTA: NA

Awards and Decorations ( per DD 214):      NONE

NJP :

S CM :

- 19970621 :      Article (Absence without leave 19970502 – 19970610, 40 days)
         Article 108 (Military property of US--Loss, damage, destruction, or wrongful disposition), 2 specifications
         Specification 1: Willfully damaging military property on 19970501.
         Specification 2: Damaging military property with neglect on 19970501.
         Sentence:

SPCM:             C C :

Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20050906
NDRB Documentary Review Docket Number:   ND05-00838
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ MILPERSMAN 3630605 ”
         “ MISCONDUCT ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.



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), Change 14, effective 3 October 1996 until 12 December 1997,
Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 86 (UA over 30 days) and Article 108 (Willfully damage military property).


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT
Applicant’s Issues

 1.       Post-service conduct .
2.       Mitigating factors (family problems) .
Decision

Date: 20100 519    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 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 evidence submitted by the Applicant. The Applicant’s record of service included one summary court-martial (SCM) for violations of the UCMJ: Article 86 ( Unauthorized absence ( UA ) - one specification totaling 38 days), Arti cle 1 08 (W il lf ully and/or negligently damaging military property – 2 specifications). B ased on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue s 1 and 2: (Decisional) ( ) . The Applicant appeared before the NDRB with his civilian counsel requesting an upgrade in his characterization of service to General (Under Honorable Conditions) based on his post-service conduct and mitigating circumstances . The Applicant’s representative provided documentary evidence which included: character references from acquaintances, his employer (local police department), field training officer , letters of commendation, recognition for volunteer services and his personal resume. Additionally, the Applicant testified that at the time he committed the offenses he was young and experiencing family problems (newly wed, wife miscarried and parents were divorcing). Additionally, the Applicant testified that he has been employed with his local police department for the past 4.5 years and desires to continue workin g in this capacity .

 In addition to considering mitigating circumstances such as family problems, t he 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. The Board noted since being discharged the Applicant has demonstrated a strong commitment to his family and protection of the community by serving on his local police force . After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to General (Under Honorable Conditions). The Applicant’s career progression and strong references demonstrated that he possessed character and drive that was not evident during his tour of active duty. His pos t -service actions demonstrate that his misconduct was most likely isolated , and not reflective of his overall character. Additionally , the NDRB determined that the Applicant’s youthfulness and lack of maturity were also factors that most likely affected his ability to deal with his family problems and subsequently led him to go UA.

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 B ased on the Applicant’s
mitigating circumstances and post-service conduct the NDRB voted unanimously to upgrade the characterization of service to . However, 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 Disabled American 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 their 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.

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 | ND0900371

    Original file (ND0900371.rtf) Auto-classification: Denied

    Further, there is no requirement for the commanding officer to convene an investigation prior to initiatingall NJP proceedings or administrative separation processing unless he determines additional evidence or information is needed.Based on a review of the record and facts unique to this case, the Board has determined there was sufficient evidence to support the basis for discharge due to the commission of a serious offense. Therefore, relief is denied.After a thorough review of the...

  • NAVY | DRB | 2009_Navy | ND0900295

    Original file (ND0900295.rtf) Auto-classification: Denied

    Record of service. 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...

  • NAVY | DRB | 2008_Navy | ND0801969

    Original file (ND0801969.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20011031 - 20020704Active: Period of Service Under Review: Date of Enlistment: 20020705Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20041028Highest Rank/Rate:ABEANLength of Service: Years Months17 DaysEducation Level:AFQT: 70EvaluationMarks:Performance:3.0(3)Behavior:1.6(3)OTA: 2.55Awards and Decorations (per DD 214):Periods of UA/CONF:...

  • NAVY | DRB | 2009_Navy | ND0902069

    Original file (ND0902069.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 | 2009_Navy | ND0902133

    Original file (ND0902133.rtf) Auto-classification: Denied

    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. Documentation to help 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...

  • NAVY | DRB | 2010_Navy | ND1000580

    Original file (ND1000580.rtf) Auto-classification: Denied

    The Applicant’s characterization of service at discharge was determined by the Separation Authority to be Under Other than Honorable Conditions and the Applicant was further assigned a re-enlistment code of RE-4 (not recommended for reenlistment). The NDRB determined that the characterization of service at discharge was appropriate as issued and that an upgrade would be inappropriate; accordingly, no relief is provided. ” Additional Reviews : After a document review has been conducted,...

  • NAVY | DRB | 2010_Navy | ND1000594

    Original file (ND1000594.rtf) Auto-classification: Denied

    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 for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2011_Navy | ND1101670

    Original file (ND1101670.rtf) Auto-classification: Denied

    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 years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2012_Marine | MD1201767

    Original file (MD1201767.rtf) Auto-classification: Denied

    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 years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2014_Marine | MD1400636

    Original file (MD1400636.rtf) Auto-classification: Denied

    Further, the NDRB voted 4-1 not to change the Narrative Reason for Separation since Misconduct most accurately describes why he was discharged from the Marine Corps.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 the discharge was proper but not equitable. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...