Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000317
Original file (ND1000317.rtf) Auto-classification: Denied

ex-ISSR, USN
Current Discharge and Applicant’s Request
Application Received: 20091104
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)        19990721 - 20000531     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000601     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031010      Highest Rank/Rate: ISSN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.50

Awards and Decorations ( per DD 214):      LoC

Periods of UA /C ONF :

NJP:

- 20030519 :      Article ( Unauthorized absence, 2003 0519 )
         Article (Fail to obey order, regulation, 20030519)
         Awarded: Suspended:

- 20030827 :      Article ( Wrongful use, possession, etc of controlled substance, 20030801 )
         Awarded: Suspended:

SCM:

SPCM:

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          Cha racter of Service, should read: “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ 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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

 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.        Applicant contends his youth and immaturity contributed to the poor decisions he made that resulted in his discharge.
2.       Applicant contends his misconduct was an isolated incident in more than three years of otherwise honorable service.
3.       Applicant seeks upgrade based on his post-service achievements.

Decision

Date: 20 10 12 20             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. The Applicant identif ied three decisional issues for the Board’s consideration . T he Board complete d 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 did not contain any negative NAVPERS 1070/613 (Page 13) counseling s but did include for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave , 19 May 2003, specifics NFIR ) ; Article ( Failure to obey order, regulation, 19 May 2003, specifics NFIR); and Article ( Wrongful use, possession, etc of controlled substance , 1 Aug 2003, specifics NFIR ) . The Applicant ’s record also contained a waiver for a non-minor misdemeanor breaking and entering charge received in July 1996 prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. This usually results in an unfavorable characterization of discharge, at a minimum, or a punitive (felony) discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Though the Applicant’s service records are incomplete, it seems his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. T he NDRB did not have the Applicant’s administrative separation package to determine whether he exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his youth and immaturity contributed to the poor decisions he made that resulted in his discharge. While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct , evidenced by his guilt in violating UCMJ Article 112a . The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct . The B oard recognizes that serving in the U.S. Navy is challenging . However, m embers of the Naval Service are expected to abide by the core values and uphold the high standards of conduct in all situations. As such, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted .

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in more than three years of otherwise honorable service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval S ervice in order to maintain good order and discipline ; violation of Article 112a meets this standard. During enlistment processing, t he Applicant signed the US N Drug Policy ; h e was fully aware there is a zero tolerance policy for drug abuse , and he acknowledged the consequences. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a service member commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , regardless of his grade and length of service , and falls far short of what is required for an upgrade in the characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant seek s an upgrade based on his post-service achievements. The Applicant claimed post-service achievements but provided no documentation to substantiate his claims. Documentation could have included ; ; letter(s) of personal reference; evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of co mmunity or church service; and marriage or child birth certificates (as applicable). The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries , 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 | 2015_Navy | ND1401526

    Original file (ND1401526.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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 establishes that the in-service misconduct was an aberration. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service,...

  • NAVY | DRB | 2014_Navy | ND1401510

    Original file (ND1401510.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. 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 eligible for a personal appearance hearing,...

  • NAVY | DRB | 2015_Navy | ND1500415

    Original file (ND1500415.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 UNCHARACTERIZED (ENTRY LEVEL SEPARATION), the narrative reason for separation shall remain and the reenlistment code shall remain RE-4. ” Additional...

  • NAVY | DRB | 2013_Navy | ND1301807

    Original file (ND1301807.rtf) Auto-classification: Denied

    Subsequent to setting aside the Applicant’s NJP, the Commanding Officer, TPU, Norfolk processed the Applicant for administrative separation and recommended that the Applicant be separated with a General (Under Honorable Conditions) characterization of service based on drug abuse. Relief denied.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...

  • USMC | DRB | 2014_Marine | MD1401412

    Original file (MD1401412.rtf) Auto-classification: Denied

    As such, this issue does not serve to provide a foundation upon which the NDRB 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.The Applicant remains eligible for a personal appearance hearing for a...

  • NAVY | DRB | 2009_Navy | ND0901116

    Original file (ND0901116.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...

  • USMC | DRB | 2008_Marine | MD0801617

    Original file (MD0801617.rtf) Auto-classification: Denied

    The Applicant’s commanding officer stated he “cannot be relied upon, takes time and resources to care for, and has demonstrated an inability to abide by rules & regs.” While the Applicant may feel his time served in Iraq was meritorious, it is not his deployed time which is in question but rather his conduct in garrison.The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to...

  • USMC | DRB | 2012_Marine | MD1200885

    Original file (MD1200885.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. 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. Additionally, the NDRB has no...

  • NAVY | DRB | 2010_Navy | ND1001079

    Original file (ND1001079.rtf) Auto-classification: Denied

    After reviewing the Applicant’s service record, the NDRB determined the characterization of General (Under Honorable Conditions) was more than equitable and consistent with the characterization of discharge given others in similar circumstances.The Applicant was given numerous opportunities to succeed in the Naval Service when most Sailors would have been separated. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • NAVY | DRB | 2009_Navy | ND0902623

    Original file (ND0902623.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 military.2. When notified of administrative separation processing using the procedure, the Applicant had an opportunity to defend himself, but waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review. ” Additional Reviews...