Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0901881
Original file (ND0901881.rtf) Auto-classification: Denied

ex-MMFR, USN
Current Discharge and Applicant’s Request
Application Received: 20090623
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)        20020829 - 20030107     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050217      Highest Rank/Rate: MMFN
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.33

Awards and Decorations ( per DD 214):     

Periods of UA : 0715, 20040519-0700, 20040520, 23 hours/45 minutes; 20040822-20040831, 9 days; 200412 10 -20050105, 26 days
Lost Time per DD214: 20040806-20040812; 20041103-20041209

NJP :

- 20040526 :       Article (Unauthorized absence), 3 specifications
         Awarded : Susp ended:

- 20040831 :       Article 86 (Unauthorized absence ) , 2 specifications
         Awarded : Susp ended:

- 20050105 :       Article 86 (Unauthorized absence ) , 3 specifications
         Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :

- 20040507 :       For violation of article 86x3 (Unauthorized absence) as evidenced by Commanding Officer’s NJP of 20040527.








Administrative Corrections to the Applicant’s DD 214

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

         “ 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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 86 .



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

Applicant’s Issues

1.        Applicant contends his unauthorized absence (UA) was not a serious offense.
2.       The Applicant contends his youth and immaturity mitigates his misconduct.
3. Re-enlistment.
Decision
Date : 20 10 0713             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 NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence: 8 specifications). The Applicant did not have a pre-service drug waiver . Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority (GCMA) review .

: (Decisional) ( ) . The Applicant contends his unauthorized absence (UA) was not a serious offense. The security of our nation depends upon military personnel being at their appointed place of duty fulfilling their service obligations. Unauthorized absence for any period, no matter how short a period, negatively impacts operational readiness. Misconduct is considered a serious offense if when adjudicated at a special or general court-martial a punitive discharge is authoriz ed. 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 (Unauthorized absence). Therefore, the Applicant’s issue is without merit. Relief denied.

: (Decisional) ( ) . The Applicant contends that his youth and immaturity contributed to making the wrong choice to violate Article 86 (Unauthorized absence) on eight occ asions and mitigate his misconduct of record . While the Appli cant may believe that he made poor de cisions due to making youthful mistake s , the record clearly reflects the Applicant was responsible for his actions . Further, the record reflects repeated and willful misconduct ; that the Applicant was responsible for his behavior at the time of the offenses ; and had no potential for further service . The Applicant’s command could have pursued confinement and a punitive discharge, but was extremely lenient in only pursuing an administrative discharge. The NDRB determined that the Applicant's youth or age was not a m itigating factor in his misconduct . An upgrade would be inappropriate.
: (Nondecisional) The Applicant desires to re-enlist in the military. 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.
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 | 2006_Marine | MD0601158

    Original file (MD0601158.rtf) Auto-classification: Denied

    The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one nonjudicial punishment (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Articles 86, Unauthorized absence over 30 days. (20050323) SJA review (date): Separation Authority (date): COMMANDER, MARINE CORPS BASE QUANTICO (ILLEGIBLE) Narrative Reason directed: Characterization directed: Date Applicant...

  • USMC | DRB | 2010_Marine | MD1002230

    Original file (MD1002230.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: UNCHARACTERIZED OR GENERAL (UNDER HONORABLE CONDITIONS)Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20031219 - 20040801Active: Period of Service Under Review: Date of Current Enlistment: 20040802Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070125Highest Rank:Length of Service: Years Months24 DaysEducation Level: AFQT:59MOS: 0300Proficiency/Conduct Marks (# of...

  • NAVY | DRB | 2009_Navy | ND0900947

    Original file (ND0900947.doc) Auto-classification: Denied

    ex-YNSR, USN Current Discharge and Applicant’s Request Application Received: 20090312 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: USNR (DEP) 20040831 - 20040908 Active: Period of Service Under Review: Date of Enlistment: 20040909 Age at Enlistment: Period of Enlistment: Years Extension Date of Discharge:...

  • NAVY | DRB | 2014_Navy | ND1400884

    Original file (ND1400884.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 | 2007_Navy | ND0701066

    Original file (ND0701066.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • USMC | DRB | 2009_Marine | MD0900846

    Original file (MD0900846.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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Should the Applicant obtain additional evidence or post-servicedocumentation he may wish to apply for a personal appearance. ” Additional...

  • USMC | DRB | 2007_Marine | MD0700908

    Original file (MD0700908.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offensesthat he committed. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is...

  • NAVY | DRB | 2010_Navy | ND1001013

    Original file (ND1001013.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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...

  • NAVY | DRB | 2010_Navy | ND1001304

    Original file (ND1001304.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” 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...

  • NAVY | DRB | 2010_Navy | ND1001803

    Original file (ND1001803.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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.