Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001233
Original file (ND1001233.rtf) Auto-classification: Denied

ex-PSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100414
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       UNDER OTHER THAN HONORABLE CONDITIONS

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20000627 - 20001126     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20001127     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090708      Highest Rank/Rate: DK3
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 47
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

NJP :

S CM :

SPCM:

- 20040315 :      Article 81 (Conspiracy)
         Article (Unauthorized absence 20040315 - 20040808, 146 days)
         Article (Larceny)
          Sentence: (20041013 - 20050720, 281 days) Fine of $6,100.00

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:

         “MILPERSMAN ”
“ 20040315 - 20040808 (146) , 20041013 - 20050720 (281) ”
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 19 December 2007 until Present, 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 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.       Wants discharge upgraded so he can qualify for U.S. Department of Veterans Affairs (VA) healthcare benefits.
Decision

Date: 20 1 1 0513             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. W ith 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 did not identify any decisional issues to the Board. However, the Board did complete a thorough review of the circumstances that led to discharge and the discharge process to determine if clemency was warranted. The Applicant’s record of service included one special court-martial for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy), Article 86 (Unauthorized absence , 146 days), and Article 121 (Larceny). Based on the Applicant’s conviction and sentence at a special court-martial, he was separated with a Bad Conduc t characterization of service.

: (Non - decisional) The Applicant w ants his discharge upgraded so he can qualify for VA healthcare benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans 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 a former service member’s eligibility to receive VA healthcare benefits or any other VA benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, verbatim record of trial, and d ischarge p rocess, the Board found clemency was not warranted. Therefore , the awarded characterization of service shall and the narrative reason for separation shall remain COURT-MARTIAL . 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

  • NAVY | DRB | 2006_Navy | ND0601203

    Original file (ND0601203.rtf) Auto-classification: Denied

    Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation Undated : Psychiatric Clinic Questionnaire, Applicant admitted use of Cocaine 20041017. Elements of Discharge: [INVOLUNTARY] Date Notified:20041013Reason for Discharge due to: Least Favorable Characterization Authorized: Date Applicant Responded to Notification: 20041013Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)Commanding...

  • NAVY | DRB | 2008_Navy | ND0800908

    Original file (ND0800908.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2008_Navy | ND0801220

    Original file (ND0801220.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...

  • NAVY | DRB | 2008_Navy | ND0800364

    Original file (ND0800364.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change: Summary of Service Prior Service: Inactive: USNR (DEP)20021028 - 20030707 Period of Service Under Review: Date of Enlistment: 20030708Period of enlistment:4 YearsDate of Discharge:20050812Length of Service: Yrs Mths05 DysEducation Level: 12Age at Enlistment:18AFQT: 31Highest Rank/Rate:SNEvaluation marks:Performance: 2.0 (2) Behavior:1.0 (2)OTA: 1.92 (2)Awards and Decorations (per DD 214): and NJP:20050720: Article...

  • NAVY | DRB | 2007_Navy | ND0701110

    Original file (ND0701110.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP)20030109 - 20030406Active: Period of Service Under Review: Date of Enlistment: 20030407Years Contracted:; Extension: Date of Discharge:20050825Length of Service: 02 Yrs 04Mths19 DysLost Time:Days UA: Days Confined: Education...

  • NAVY | DRB | 2007_Navy | ND0700593

    Original file (ND0700593.rtf) Auto-classification: Denied

    However, the Applicant was not assessed to be a risk to harm self or others.In accordance with regulation, when separation processing is warranted for any reason in addition to personality disorder (convenience of the government), dual or multiple processing is required. ]20050203: Balboa Naval Hospital recommended the Applicant for separation due to no significant improvement following medical and therapeutic treatments for previously diagnosed impulsivity and...

  • NAVY | DRB | 2008_Navy | ND0801447

    Original file (ND0801447.rtf) Auto-classification: Denied

    The Board determined an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...

  • NAVY | DRB | 2007_Navy | ND0700257

    Original file (ND0700257.rtf) Auto-classification: Denied

    The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one retention warning, two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 128 [Aggravated assault (3 Specifications)] and Article 134 (Disorderly conduct, drunkenness). Discharge Process Date Notified: 20050725Reason for Discharge:--Least Favorable Characterization: Date...

  • NAVY | DRB | 2008_Navy | ND0800226

    Original file (ND0800226.rtf) Auto-classification: Denied

    Awarded - , Susp - Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2007_Navy | ND0700218

    Original file (ND0700218.rtf) Auto-classification: Denied

    Discussion Issue 1: The Board determined that this Issue is not an Issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR...