Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0902513
Original file (ND0902513.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090909
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)        20080818 - 20080923     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20080924     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081210      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: NA   Behavior: NA     OTA: NA

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :
- 20081125 :      Article (Assault by striking/punching to the chest with closed fists toward another recruit)
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling:
- 20081125 :      For giving up rights to talk to a lawyer.
- 20081205 :      For not being eligible to reenlist due to ASMO Code 2337.

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL ”
          “ ”
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 23, effective 12 June 2008 until 9 November 2009, 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 128 (Assault ).


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

Applicant’s Issues
1. The Applicant seeks an upgrade to enhance employment opportunities and to become an American c itizen .
2 . The Applicant seeks a change in his narrative reason for separation and character of service, which was affected by misconduct due to him being harassed by other recruits. He also feels he was “set up,” because he was promised a General discharge.

Decision
Date: 2010 1019 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning s and nonjudic i al punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article (Assault by striking/punching to the chest with closed fists toward another recruit). Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to co nsult with a qualified counsel and to submit a written statement for consideration by the separating authority . The Applicant was not entitled to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities and to become an American c itizen . 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. Additionally, the NDRB has no influence or authority regarding citizenship in the United States.

: (Decisional) ( ) . The Applicant seeks a change in his narrative reason for separation (Block 28 on the DD Form 214) and character of service (Block 24) , which was affected by misconduct due to him being harassed by other recruits. The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted. The service record clearly documents the misconduct that ultimately resulted in the Applicant’s discharge. Since no other n arrative r eason for s eparation (Block 28) could more clearly describe why the Applicant was discharged, a change would be inappropriate. T he Applicant was fortunate that the command gave him an Uncharacterized character of service (Block 24) . Due to his documented misconduct and the seriousness of the offense , his command could have characterized his service as General (Under Honorable Conditions) or Under Other Than Honorable Conditions in Block 24 . By regulation, an U ncharacterized description shall be used when separation is initiated while a member is in an entry level status, within the first 180 days of enlistment . While the NDRB does not doubt that the Applicant was told that he would be discharged with a General discharge in Block 24 , the Uncharacterized discharge is proper , is more lenient and favorable than a General discharge, and was appropriately put into Block 24 of his DD Form 214. The Petty Officer was correct in stating that with only two months of service, the Navy typically does not classify a recruit as “good or bad,” which is why the Uncharacterized character of service is used. The Applicant was not “set up” as he claims, but rather was given a break with the Uncharacterized discharge.

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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment/Educational Opportunities 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 | 2012_Navy | ND1200052

    Original file (ND1200052.rtf) Auto-classification: Denied

    Per Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 21 May 2008 until 9 November 2009, Article 1910-154, SEPARATION BY REASON OF ENTRY LEVEL PERFORMANCE AND CONDUCT, she was properly and equitably discharged with an Uncharacterized for Entry Level Performance and Conduct.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...

  • USMC | DRB | 2011_Marine | MD1102176

    Original file (MD1102176.rtf) Auto-classification: Denied

    Based on the Applicant’s conduct and performance, his command administratively processed him 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. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

  • USMC | DRB | 2012_Marine | MD1200091

    Original file (MD1200091.rtf) Auto-classification: Denied

    The Applicant contends his Administrative Separation Board (ASB) recommended his discharge be suspended.3. ” 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 obtaining veterans benefits and this issue does not serve to provide...

  • NAVY | DRB | 2011_Navy | ND1101857

    Original file (ND1101857.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. ” Additional Reviews : After...

  • NAVY | DRB | 2010_Navy | ND1000597

    Original file (ND1000597.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS.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...

  • NAVY | DRB | 2010_Navy | ND1000141

    Original file (ND1000141.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. Relief denied.Summary: After...

  • USMC | DRB | 2014_Marine | MD1400190

    Original file (MD1400190.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant’s enlistment processing documentation did not reveal any prior injuries of this nature.Based on the Applicant’s diagnosis of cystic lesions on his left talus that existed prior to service, command administratively processed for separation.The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived...

  • NAVY | DRB | 2014_Navy | ND1401518

    Original file (ND1401518.rtf) Auto-classification: Denied

    Based on the offenses committed by the Applicant, command administratively processed for separation. 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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been...

  • NAVY | DRB | 2015_Navy | ND1500745

    Original file (ND1500745.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 HONORABLE and the narrative reason for separation shall remain PHYSICAL STANDARDS. ” Additional Reviews : After a document review has been conducted,...

  • USMC | DRB | 2014_Marine | MD1401404

    Original file (MD1401404.rtf) Auto-classification: Denied

    Under the authority for administrative separation for reason of a personality disorder, the characterization of service should be Honorable unless significant negative aspects of performance or conduct warrant a General discharge. ” 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...