Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901696
Original file (ND0901696.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20090601
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)        20020531 - 20020624     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020625     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051002      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.09

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20030929 :      Article (Absence without leave from appointed place of duty 20030823)
         Article (Assault on 20030702 )
         Awarded: Suspended: Vacated: 20031030 [extracted from CO Recommendation for Administrative Separation letter dated 20050914.]

- 20041104 :      Article (Absence without leave), 3 specifications
         Specification 1: 20040823 – 20040825, 2 days.
         Specification 2: 200 41025 – 200 41026 , 1 day.
          Specification 3: Fail to go to morning muster on 20041103 .
          Article ( Disrespect toward superior commissioned officer )
          Awarded: Suspended:

- 200 5 0812 :      Article (Assault on 20050805)
         Awarded: Suspended:

- 20050914 :      Article (Absence without leave), 2 specifications
         Specification 1: 0600, 20050901 – 0800, 20050901.
         Specifi cation 2: 20050902 – 20050906, 4 days, surrendered
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 20030929 :      For violation of article 86 and 128 resulted in CO’s NJP held this date

NDRB Documentary R eview Conducted (date):        20080711
NDRB Docume ntary Review Docket Number:   ND08 - 00869
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:

         “ PATTERN OF 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 :   


Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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       ,       . [For COSO discharge only]


A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 .


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

Applicant’s Issues

 1. Characterization of discharge was too harsh for the misconduct committed.
 2. Post-service conduct warrants consideration.
Decision

Date: 2010 0623             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 NAVPERS 1070/613 (Page 13) warnings and four nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications: 2 days, 1 day, 4 days -surrendered ), Article 86 (Absent from appointed place of duty, 3 specifications), and Article 128 (Assault, 2 specifications). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Applicant was discharged in absentia.

Issue 1 : (Decisional) ( ) . The Applicant contends the characterization of his discharge was too harsh for the misconduct committed. The NDRB reviews the propriety and equity of an Applicant’s discharge individually on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense and met the requirements for separation for a pattern of misconduct, that separation from the Naval service was appropriate, and that an Under Other Than Honorable discharge was warranted.

Issue 2: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. Along with the DD Form 293, the Applicant provided eleven letters of reference, which were from pastors of the church he attends or supports, professors from his college, and previous employers. Unfortunately, this is insufficient documentation to evaluate the Applicant’s post-service character and conduct. The Applicant's efforts needed to be more encompassing. Along with his letters of references, he should have provided documentation that could include but not limited to: verifiable employment record; evidence of a drug-free life style (completion of rehabilitation or proof of attendance at Narcotics Anonymous or Alcoholics Anonymous meetings); certification of non-involvement with civil authorities; evidence of financial stability (mortgage or home rental history, credit score, credit card payments); college transcripts; documentation of community or church service; and if married, a marriage certificate. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis . After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or an inequity in the characterization of service.

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 .


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.

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 | 2008_Navy | ND0800896

    Original file (ND0800896.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 conduct mitigates the reason for the characterization of discharge.The Board determined based on post service documentation provided an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record...

  • NAVY | DRB | 2012_Navy | ND1201099

    Original file (ND1201099.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. With three Page 13 retention warnings and four NJPs during his enlistment, he met the requirements for administrative separation due to Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense) and received a very equitable General (Under Honorable Conditions) characterization of service.Summary: After a thorough review of the available evidence, to include the...

  • NAVY | DRB | 2009_Navy | ND0902137

    Original file (ND0902137.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Wants to reenlist in the military. ” 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...

  • NAVY | DRB | 2010_Navy | ND1000875

    Original file (ND1000875.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: Pertinent Regulation/Law A. Summary: After a thorough...

  • NAVY | DRB | 2006_Navy | ND0601091

    Original file (ND0601091.rtf) Auto-classification: Denied

    Regarding equity, the Board found the discharge: Discussion Narrative reason change: Commander Naval Personnel directed the Applicant’s discharge by reason of misconduct due to drug abuse after reviewing the administrative discharge package forwarded by U. S. Naval Security Force, Bahrain. The record documents his administrative discharge board and commanding officer’s recommendation for separation by reason of misconduct by drug abuse with a characterization of service as under other than...

  • NAVY | DRB | 2008_Navy | ND0801126

    Original file (ND0801126.rtf) Auto-classification: Denied

    The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.The Applicant provided a personal statement and as evidence of post-service accomplishments. The Board determined based on the documentation provided the characterization of service received, “Under Other Than...

  • USMC | DRB | 2012_Marine | MD1201200

    Original file (MD1201200.rtf) Auto-classification: Denied

    After a complete review of the Applicant’s record of service, medical records, combat deployment, misconduct, and separation proceedings, the NDRB determined his PTSD did not mitigate his misconduct. ” 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...

  • NAVY | DRB | 2013_Navy | ND1300486

    Original file (ND1300486.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. ” 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...

  • USMC | DRB | 2009_Marine | MD0901240

    Original file (MD0901240.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

  • USMC | DRB | 2014_Marine | MD1401403

    Original file (MD1401403.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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 purpose of enhancing reenlistment opportunities.