Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1002010
Original file (ND1002010.rtf) Auto-classification: Denied

ex-GSMFA, USN
Current Discharge and Applicant’s Request
Application Received: 20100812
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)        19950921 - 19960204     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19960205     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980313      Highest Rank/Rate: GSMFA
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP:

- 19970913 :      Article ( Insubordinate c onduct t oward a Petty Officer)
         Article (Provoking s peeches or g estures)
         Article 1 2 8 (Assault)
         Awarded: Suspended: (15 days)

- 19980220 :       Article (Drugs)
         Awarded: Suspended:

SCM:     SPCM:    C C :

Retention Warning Counseling:

- 19970913 :        For deficiencies in your performance resulting in an NJP awarded on 19970913 .

Administrative Corrections to the Applicant’s DD 214

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

                   “ UNDER OTHER THAN HONORABLE CONDITIONS ”
                  Block 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”

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 18, effective 12 December 1997 until
19 May 1999, 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.       Record of service warrants consideration for upgrade to Honorable .
2.       Misconduct was due to youth and immaturity.
 3.       Post-service conduct warrants consideration for upgrade to Honorable.

Decision

Date: 20 1 1 1005         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’s record of service included NAVPERS 1070/613 (Page 13) warning and non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward a petty officer , ), Article 112a (Wrongful use, possession of a controlled substance, 1 specification), Article ( Provoking speeches or gestures, ), and Article ( Assault, ) . The Applicant did not require a pre-service drug waiver to enter the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant 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 he received award s and decorations during his service. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Violation of Article 112a of the UCMJ is such an offense that can result in an unfavorable characterization of service, or at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. During NJP proceedings, the Applicant was found guilty of vio lating UCMJ Article 112a . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant's discharge was equitable and consistent with the characterization given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant states his misconduct was due to youth and immaturity. The NDRB recognizes that many service members are young when they enlist for service but still manage to serve honorably. The Board does understand some members are not as mature or others , however, it does not view a member’s claim of youth and immaturity to be a mitigating factor or a sufficient reason for misconduct. The NDRB determined the awarded discharge characterization was warranted. Relief denied.

: (Decisional) ( ) . T he Applicant states that he has been a good citizen since his discharge , suggesting his post-service conduct warrants consideration for upgrading his discharge to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant did not submit any documentation with the DD Form 293 to evaluate his post-service character and conduct. His efforts needed to have been more encompassing. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Relief 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

  • NAVY | DRB | 2008_Navy | ND0801436

    Original file (ND0801436.rtf) Auto-classification: Denied

    ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington,...

  • NAVY | DRB | 2010_Navy | ND1000684

    Original file (ND1000684.rtf) Auto-classification: Denied

    However, the Applicant has a separation code of HKK on his DD214, which indicates he waived his right to an administrative board.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 of service shall and the narrative reason for separation shall remain .The Applicant is directed to the Addendum, specifically the paragraphs titled Additional...

  • NAVY | DRB | 2011_Navy | ND1100885

    Original file (ND1100885.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20030819 - 20030902Active: Period of Service Under Review: Date of Current Enlistment: 20030903Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20050215Highest Rank/Rate: GSMFALength of Service: YearMonths13 DaysEducation Level:AFQT: 73EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NDSM...

  • NAVY | DRB | 2010_Navy | ND1001448

    Original file (ND1001448.rtf) Auto-classification: Denied

    The Applicant was discharged on 26 November 2008 with a General (Under Honorable Conditions) characterization by reason of Pattern of Misconduct. 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...

  • NAVY | DRB | 2010_Navy | ND1002154

    Original file (ND1002154.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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...

  • NAVY | DRB | 2010_Navy | ND1001007

    Original file (ND1001007.rtf) Auto-classification: Denied

    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/ToCongress member: Pertinent Regulation/Law A. The NDRB did not have the Applicant’s administrative separation...

  • NAVY | DRB | 2008_Navy | ND0801229

    Original file (ND0801229.rtf) Auto-classification: Denied

    Due to the seriousness of the multiple violations and his length of service and amount of experience in the Navy, the Board determined the award of an “Under Other Than Honorable Condition” discharge was appropriate and an upgrade or change would be inappropriateAfter 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...

  • NAVY | DRB | 2015_Navy | ND1500579

    Original file (ND1500579.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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE). ” Additional Reviews : After a...

  • NAVY | DRB | 2009_Navy | ND0901991

    Original file (ND0901991.rtf) Auto-classification: Denied

    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 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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2008_Navy | ND0801888

    Original file (ND0801888.rtf) Auto-classification: Denied

    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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.Based on a review of the record, statement and evidence submitted by the Applicant, the Board voted the Applicant’s post-service conduct was...