Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0902171
Original file (ND0902171.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20090731
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)        20050107 - 20050125     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050126     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070525      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.50

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20050527 :      Article (Insubordinate conduct ), 2 specifications
          Specification 1: S uperior petty officer
         Specification 2: D isrespect in deportment to a superior petty officer
         Awarded: Suspended: FOR 5 DAYS

- 20070419 :      Article (Failure to go to appointed place of duty - Divisional Quarters)
         Awarded: Suspended: [Extracted from Commanding Officer’s letter dated 20070428.]

- 20070422 :      Article (Failure to go to appointed place of duty - restricted muster), 3 specifications
         Article 91 (Insubordinate conduct), 2 specifications
         Specification 1: Petty Officer Third Class
         Specification 2: Chief Petty Officer
          Awarded : Susp ended: [Extracted from Commanding Officer’s letter dated 20070428.]

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 20050527 :       For insubordinate conduct toward a superior petty officer and disrespect in deportment to a superior petty officer.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
        
“ 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 :   

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 .



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

Applicant’s Issues

 1.        Wrongly and unfairly discharged.

Decision

Date: 20 10 0722             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) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Failure to go to appointed place of duty, 4 specifications) and Article 91 (Insubordinate conduct, 4 specifications). Based on the offenses committed by the Applicant, command administratively processed 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.

: (Decisional) ( ) . The Applicant contends that he was wrongly and unfairly discharged and was not informed that by choosing to be released from the Navy he would receive an unfavorable reentry code and a “lesser than Honorable discharge. ”

Per 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 , members may be separated when during the current enlistment they have two or more nonjudicial punishment s (NJP), court-martial, or civil convictions (or combination thereof) and have violated a NAVPERS 1070/613 (Page 13) warning . The Applicant’s three NJPs and Page 13 warning met the requirement for his command to process him for administrative separation for a Pattern of Misconduct.

The Applicant submitted a series of e-mails from May 2007 between Expeditionary Strike Group (ESG) Three Staff Judge Advocate (SJA) and the A pplicant’s uncle and the Applicant’s father that described alleged misconduct by security personnel onboard USS Boxer against the Applicant and a subsequent investigation into these allegations. While the e-mails indicate an ongoing investigation, there is no documentation stating the outcome of this investigation. However, the Applicant does allege that the ESG Three SJA told him that he “was exonerated from all charges and was given the option to remain in the United States Navy, return to the Boxer for duty , and reinstatement to the rank of Seaman E-3,” though no documentation or proof is provided, nor is there anything in the Applicant’s service record, to substantiate this allegation.

The Applicant further states that “based on my frame of mind at the time and since no other options to relocate me to a different command w ere offered, I had no other alternative but to choose not to return to the Boxer for duty.” If a return to duty on the Boxer was offered, t he n the Applicant clearly did have an option to return to the ship. Finally, the Applicant states that “at no time was I warned that by choosing the option to be released from the US Navy would I receive an RE-4 reenlistment code and a lesser than Honorable discharge.” On 23 May 2007, two days before his discharge, the Applicant signed an Administrative Remarks memo that stated, “Not recommended for Reenlistment and assigned a restrictive enlistment code of RE-4 due to: Misconduct. I hereby acknowledge and understand that I have been informed that I am not eligible for reenlistment and that an entry to that effect has bee n made in my service record.”



For the Applicant’s information, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and so is not authorized to change a reenlistment code. Only the B oard for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) 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

  • NAVY | DRB | 2008_Navy | ND0801842

    Original file (ND0801842.rtf) Auto-classification: Denied

    Record of service. 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.The Applicant has requested a discharge characterization upgrade to “Honorable”. ” Additional Reviews : Subsequent to a...

  • NAVY | DRB | 2014_Navy | ND1400906

    Original file (ND1400906.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • NAVY | DRB | 2014_Navy | ND1400087

    Original file (ND1400087.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to reenlist in the U.S. Navy.2. 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...

  • NAVY | DRB | 2015_Navy | ND1500280

    Original file (ND1500280.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2013_Marine | MD1301297

    Original file (MD1301297.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/To Congress member: Pertinent Regulation/Law A. Paragraph 6210,...

  • NAVY | DRB | 2011_Navy | ND1100400

    Original file (ND1100400.rtf) Auto-classification: Denied

    ” 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 or good conduct subsequent to leaving naval service. Post-Service Conduct : The NDRB is authorized to consider...

  • NAVY | DRB | 2011_Navy | ND1100665

    Original file (ND1100665.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks an upgrade to reenlist in the U.S. Armed Forces.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The...

  • NAVY | DRB | 2010_Navy | ND1001872

    Original file (ND1001872.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.The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. ” 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...

  • NAVY | DRB | 2012_Navy | ND1201413

    Original file (ND1201413.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.

  • NAVY | DRB | 2010_Navy | ND1001244

    Original file (ND1001244.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 . ” Additional Reviews : After a document review has been conducted, former members are...