Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000952
Original file (ND1000952.rtf) Auto-classification: Denied

ex-HR, USN
Current Discharge and Applicant’s Request
Application Received: 20100302
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)        20010830 - 2001092 4     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200 1 092 5     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200506 2 7      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.29

Awards and Decorations ( per DD 214):      Pistol .

Periods of UA :

NJP : S CM :

SPCM:

- 2004 0726 :       Art icle (Failure to obey a lawful order, to wit: Military Protection Order, dated 5 March 2004, an order which it was his duty to obey, 3 specifications)
         Specification 1: on or about 8 March 2004, fail to obey the same by wrongfully calling [person] repeatedly on her home phone.
         Specification 2: on or about 18 March 2004, fail to obey the same by wrongfully going to the residence of [person] .
         Specification 3 : on or about 28 April 2004, fail to obey the same by wrongfully having [person] in his barracks area.
         Art icle (Assault, to wit: on or about 18 March 2004 , unlawfully: (1) bite [person] , on the right hand with his mouth; and (2) choke [person] , on the neck with his hands)
         Art icle ( General article, in that, having been restricted to the limits of place of duty, mess, and worship b y a person authorized to do so, did, on board Camp Lejeune , North Carolina, on or about 28 April 2004, break restriction )
         Sentence : 150 DAYS $750. X5 MONTHS BCD

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:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read : “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, COMBAT ACTION RIBBON, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, PISTOL MARKSMANSHIP RIBBON, PRESIDENTIAL UNIT CITATION, GLOBAL WAR ON TERRORISM EXPEDITIONARY MED A L , FLEET MARINE FORCE RIBBON ”

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), Change 8, effective 9 September 2004 until
18 September 2005, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .



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

Applicant’s Issues

 1.        The Applicant contends that his B ad Conduct Discharge (B CD ) is inequitable , because his misconduct was mitigated by his personal family issues and seeks consideration in the form of clemency by upgrading his d ischarge to General.

Decision

Date : 20 1 1 0408             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 NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service contained a trial by Special Court-Martial. The Applicant’s command preferred charges against him for of the UCMJ: Article 92 ( Failure to obey a lawful order, to wit: Military Protection Order, dated 5 March 2004, an order which it was his duty to obey, 3 specifications ) , Article 128 ( Assault, to wit: on or about 18 March 2004, unlawfully: (1) bite [person] , on the right hand with his mouth; and (2) choke [person] , on the neck with his hands ), and Article 134 ( General article, in that, having been restricted to the limits of place of duty, mess, and worship, by a person authorized to do so, did, on board Camp Lejeune, North Carolina, on or about 28 April 2004, break restriction ) . The Applicant entered into a pre-trial agreement with the Convening Authority; he accepted and pled guilty at trial by Special Court-Martial . On 26 July 200 4 he was found guilty in trial by judge alone and was adjudged a sentence of a Bad Conduct Discharge, reduction in grade to E-1, forfeiture of pay $750 x 5 months , and confinement for 150 days (suspended for 12 months) minus 9 3 days credit for pre trial confinement. The trial by Special Court - Martial, without specific assignment of error or brief, was reviewed and was affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals on 1 5 April 2005.

: (Decisional) ( ) . The Applicant contends that his BCD is inequitable , because his misconduct was mitigated by his personal family issues and seeks consideration in the form of clemency by upgrading his d ischarge to a General (Under Honorable Conditions) . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Other than his personal statement and a copy of the Record of Trial, the Applicant provid ed no documentation or evidence for the NDRB to consi der. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. In this specific case - violation of lawful orders, coupled with aggravated assault on a fellow servicemember and spouse - the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient non-judicial punishment and administrative discharge process. Based on the facts stipulated in the verbatim record of trial, the Applicant’s misconduct could have been prevented had he obeyed his chain of command or s ought help from the many family services available to servicemembers in need . The NDRB conducted a thorough review of the available evidence, to include the Applicant’s summary of service; service record entries; the verbatim Record of Trial by Special Court-Martial transcript; and the personal statement of the Applicant. Based on this review, the NDRB determined the sentence awarded the Applicant at his court-martial was both proper and appropriate for the offenses committed and that clemency was not warranted. R elief 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 for additional information.


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 | 2015_Marine | MD1500093

    Original file (MD1500093.rtf) Auto-classification: Denied

    Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, and confinement for a period of five months. 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 BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL. ” Additional Reviews : After a...

  • USMC | DRB | 2013_Marine | MD1300666

    Original file (MD1300666.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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...

  • USMC | DRB | 2013_Marine | MD1300663

    Original file (MD1300663.rtf) Auto-classification: Denied

    While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.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...

  • USMC | DRB | 2010_Marine | MD1001819

    Original file (MD1001819.rtf) Auto-classification: Denied

    The command opted to prefer the new charges of misconduct to trial by special court-martial.The stated misconduct resulted in the special court-martial awarding a punitive Bad Conduct Dischargeand confinement for 6 months.The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2013_Marine | MD1300496

    Original file (MD1300496.rtf) Auto-classification: Denied

    After a complete review of the records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct, and clemency is not warranted on this issue. ” 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...

  • USMC | DRB | 2014_Marine | MD1400742

    Original file (MD1400742.rtf) Auto-classification: Denied

    The NDRB determined the Applicant did not submit any documentation, nor is there anything in his records, to warrant clemency. ” 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 | 2013_Marine | MD1300045

    Original file (MD1300045.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. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2013_Marine | MD1301374

    Original file (MD1301374.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s service and medical records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct and clemency is not 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 the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2014_Marine | MD1400628

    Original file (MD1400628.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2010_Marine | MD1002216

    Original file (MD1002216.rtf) Auto-classification: Denied

    Time served in confinement: 20030709 - 200300711 [IHCA], 20030712 - 20030827 [pre-trial confinement], and 20030828 - 20030920 [confinement] - 72 days total time served.CC: NONERetention Warning Counseling:NONE 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...