Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901714
Original file (ND0901714.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20090602
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)        20030321 - 20030721     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030722     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081002      Highest Rank/Rate: MM 2
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 93
Evaluation M arks:         Performance: 4.17 ( 6 )     Behavior: 2.67 ( 6 )       OTA: 3.42

Awards and Decorations ( per DD 214):      MUC (2)

Periods of UA /C ONF :

NJP :
- 20050316 :      Article (Failure to obey order or regulation – not reporting known offenses committed by other sailors)
         Awarded: Suspended:

- 20080409:      Article (Drunken operation of a motor vehicle – a rrested in Suffolk, VA with a BAC .12)
         Awarded: Suspended:

- 20080728 :      Article (Drunken operation of a motor vehicle – a rrested in Dare County, NC with a BAC .09) Awarded: Suspended:

S CM :

SPCM:

C C :
- 20080408:      Offense: Arrested in Suffolk, VA for driving under the influence of alcohol
          Sentence : Fine ($150.00) and Court fee ($71.00)
- 20080727 :       Offense: Arrested in Dare County, NC for driving under the influence of alcohol
         Sentence : NFIR


Retention Warning Counseling:
- 20050317 :      For violation of article 92 (Failure to obey order or regulation) not reporting known offenses committed by other sailors, CO’s NJP awarded this date .



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 :    Receipt of fines paid


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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. The Applicant requests an upgrade in his discharge due to the lack of convictions (civilian courts) of offenses.               

Decision

Date: 20 10 0318 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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and nonjudicial punishments (NJPs) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey an order or regulation - not reporting known Article 134 offenses committed by other sailors) and Article 111 (Drunken operation of a motor vehicle – 2 specifications). The Applicant was involved in two drunken operation of a motor vehicle incidents that resulted in civilian apprehension . Due his misconduct, the command took appropriate action by conducting an NJP for each offense. Based on the offenses committed by the Applicant, command administratively processed for separa tion. The reasons for separation given to the Applicant were as follows: pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure. The Applicant was ultimately discharge due to a pattern of misconduct. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority and to request an administrative board .

: (Decisional) ( ) . The Applicant contends he should get an upgrade in his discharge due to the lack of convictions (civilian courts) of offenses that resulted in his discharge . The Applicant provided a copy of a n official receipt from Suffolk General District (Traffic) for paying a court (processing) fee of $71 and a fine in the amount of $150. A c ommission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, offense must be substantiated by a preponderance of evidence (e.g., copy of police record, Naval Criminal Investigative Service (NCIS) investigation, etc.). The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. The fact that the Applicant paid a fine is proof that the incident occurred. The NDRB determined that the commands actions were conducted properly and the discharge was warranted. Relief denied.

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 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

  • USMC | DRB | 2013_Marine | MD1301212

    Original file (MD1301212.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.

  • 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 | 2014_Navy | ND1400582

    Original file (ND1400582.rtf) Auto-classification: Denied

    A review of his record revealed that his PTSD was from pre-service events and not as the result of a deployment in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).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...

  • USMC | DRB | 2009_Marine | MD0900212

    Original file (MD0900212.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency...

  • NAVY | DRB | 2011_Navy | ND1100519

    Original file (ND1100519.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’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. Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time...

  • NAVY | DRB | 2010_Navy | ND1000598

    Original file (ND1000598.rtf) Auto-classification: Denied

    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.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...

  • NAVY | DRB | 2014_Navy | ND1400116

    Original file (ND1400116.rtf) Auto-classification: Denied

    The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.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...

  • NAVY | DRB | 2009_Navy | ND0901612

    Original file (ND0901612.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant is seeking better employment opportunities2. ” 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...

  • NAVY | DRB | 2010_Navy | ND1001829

    Original file (ND1001829.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.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...

  • NAVY | DRB | 2009_Navy | ND0901041

    Original file (ND0901041.rtf) Auto-classification: Denied

    He was charged with knowingly operating a motor vehicle on a suspended license.Based on the offense(s) committed by the Applicant, 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 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a discharge for the sole...