Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001174
Original file (ND1001174.rtf) Auto-classification: Denied

ex-ABFAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100408
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)        20041217 - 20050126     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050127     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070928      Highest Rank/Rate: ABF AN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 3.21

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20050702 :       Article (Violation of a lawful order)
         Awarded : Susp ended:

- Undated :        Article (Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer)
         Article (Drunken or reckless driving)
         Awarded: Suspended: [Extracted from Evaluation Report & Counseling Record dtd 20070928)

S CM :    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:

          “ MISCONDUCT (SERIOUS OFFENSE) ”
        
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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, 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-ma rtial for violation of the UCMJ: Article 91 and Article 111 .



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

Applicant’s Issues

 1.        Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

2.       Decisional issues : The Applicant contends that his discharge characterization of service was inequitable as his misconduct was the mistakes of a youthful and immature S ailor.

Decision

Date : 20 1 1 0628            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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant did not provide any additional documentary evidence for the NDRB’s consideration or any documentary evidence to rebut the NDRB’s presumption of regularity .

The Applicant enlisted at the age of 1 9 into the United States Navy on a four-year enlistment agreement on the Seafarer to Airmen Apprenticeship program . The Applicant’s record of service contains a nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) , specifically , violation of Article 91 ( Insubordinate conduct toward a Warrant Officer, Noncommissioned Officer, or Petty Officer ) , Article 9 2 ( Violation of lawful order or regulation ) , and Article 111 (Drunken or reckless operation of a motor vehicle) . The Applicant was separated for Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN). Based on the offenses committed, the Applicant’s Commanding Officer requested involuntary administrative separation pursuant to Article 1910-142 of the MILPERSMAN on 12 September 2007; the Separation Authority approved the request on 27 September 2007. On 28 September 200 7 , the Applicant was discharged from the N aval S ervice with a n Under Other Than Honorable Conditions characterization of service for M isconduct (Serious Offense) ; the Applicant was further advised that he was not recommended for reenlistment or re - entry and was assigned an RE-4 re - entry code.

(Nondecisional Issues). The Applicant seeks an upgrade in the characterization of h is service at discharge to General (Under Honorable Conditions) in order to facilitate employment opportunities . There is no requirement, or law, that grants re-characterization solely on the issues of facilitating employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional Issues) ( ) . The Applicant contends that h is discharge characterization of service was inequitable as h is misconduct was an isolated , youthful mistake and he has matured since discharge. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated involuntarily based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related military offense. Furthermore, administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. The Applicant’s service record formally documents a determination of guilt for violation of Articles 91, 92, and 111 of the UCMJ at two nonjudicial punishment s (Captain’s Mast). In accordance with the Manual for Courts-Martial, violation of these Articles of the UCMJ warrants a punitive discharge and confinement for up to 2 years, if adjudicated at trial by court-martial; thus, the violations meet the requirement of the MILPERSMAN for administrative separation due Misconduct - Commission of a Serious Offense. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisf y t he requirements established for separation based on Misconduct. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge.

( Equity ) - Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. As indicated in the preceding paragraphs, insubordinate conduct, violation of lawful orders or regulations, and driving under the influence of alcohol - though individually isolated - are serious offense s that violate the trust and confidence of fellow service members and violate the Navy Core Values. Moreover, while the Applicant may contend that h is youth or immaturity were the underlying cause of h is misconduct, he provided no documentation or explanation in support of this claim. The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably. While we understand some members may be less mature than others may, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.

T he Command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Based on evidence of record , documents, facts, and circumstances unique to this case, the NDRB discerned that the characterization of the Applicant ’ s service at discharge was inequitable and was not consistent with the characterization of discharge given others in similar circumstances. Though the A pplicant’s record of service contained two n onjudicial punishment s, the NDRB determined that the Applicant’s service was honest and faithful , but that significant negative aspects of the member’s conduct and performance of duties did outweigh the positive aspects of his service record. By a vote of 4-1, the NDRB determined that an upgrade is appropriate and that relief is warranted; therefore, the character of the discharge shall change to General (Under Honorable Conditions) . Relief , as requested, is provided.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall , however, 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 .


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 | 2010_Navy | ND1001271

    Original file (ND1001271.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. He received a General (Under...

  • NAVY | DRB | 2010_Navy | ND1001656

    Original file (ND1001656.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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2010_Navy | ND1001334

    Original file (ND1001334.rtf) Auto-classification: Denied

    On 01 April 2009, the Separation Authority reviewed the chain of command’s recommendation for separation and determined that a preponderance of the evidence supported separation and further directed that the Applicant receive an Under Other Than Honorable Conditions characterization of service and that he be assigned a re-entry code of RE-4 (not recommended for reenlistment). The Separation Authority determined that separation in the Applicant’s case was proper and further, that the...

  • NAVY | DRB | 2010_Navy | ND1001196

    Original file (ND1001196.rtf) Auto-classification: Denied

    However, the Board recommended by a vote of 3 to 0, that the Applicant receive a General (Under Honorable Conditions) characterization of her service at discharge. The Separation Authority approved the recommendation for discharge, directing that the basis for separation be MISCONDUCT (Serious Offense) – having determined that the evidence of record supported the basis for discharge – and that the characterization of service, as recommended by the chain of command and the discharge board,...

  • NAVY | DRB | 2010_Navy | ND1001019

    Original file (ND1001019.rtf) Auto-classification: Denied

    The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be separated for Misconduct (Commission of a Serious Offense) and that he be separated Under Other Than Honorable Conditions without recommendation for reentry into the armed services.Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the...

  • NAVY | DRB | 2010_Navy | ND1001369

    Original file (ND1001369.rtf) Auto-classification: Denied

    He further determined that separation in the Applicant’s case was warranted and that the proposed characterization of servicewas warranted.On 29 April 2004, the Separation Authority directed the Applicant be discharged and that he receive a re-entry code of RE-4 (not recommended for reenlistment).The NDRB reviewed the Applicant’s discharge package to ensure that the Applicant was afforded all of his administrative rights pursuant to the separation process. The NDRB reviewed the Applicant’s...

  • NAVY | DRB | 2010_Navy | ND1000813

    Original file (ND1000813.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Nondecisional issues:The Applicant seeks an upgrade in the characterization of his discharge and a change to his reentry code in order to further his prospect of reenlistment in the United States Army, thereby facilitating a better opportunity to provide for himself and his family and be a more productive member in society. The Applicant completed two years and four months of...

  • NAVY | DRB | 2012_Navy | ND1200044

    Original file (ND1200044.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 | 2013_Navy | ND1300851

    Original file (ND1300851.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...

  • NAVY | DRB | 2009_Navy | ND0902150

    Original file (ND0902150.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...