Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1002065
Original file (ND1002065.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20100817
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)        20010627 - 20010712     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010713     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030529      Highest Rank/Rate: FA
Length of Service : Y ear M onth s 17 D a ys
Education Level:        AFQT: 32
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NUC NAVY “ E” NDSM SSDR (2)

Periods of UA /C ONF :

NJP : 3

- 20020925:      Articl e 107 (False official statement , o/o 20020715 )
         Awarded: FOP RESTR Suspended: NONE

 - 2003 0125 :      Article 86 (Absence without leave)
         Article 89 (Disrespect toward superior commissioned officer)
         Article 92 (Failure to obey order or regulation, wrongful possession of contraband , 20030107 )
         Awarded: RIR (to E-1) FOP RESTR EPD Suspended:

- 20030326 :      Article 86 (Absence without leave, UA , 20030212 )
         Article 92 (Failure to obey order or regulation)
         Awarded : FOP CONF (with B read and Water 3 days ) Suspended:

S CM : NONE       SPCM: NONE        C C : NONE

Retention Warning Counseling : 1

- 20030127 :       For CO’s NJP held on 25 Jan 03 for violation of the UCMJ, Article 86 - U nauthorized A bsence (UA) , Article 89 - D isrespect to a C ommissioned O fficer , and Article 92 - Violation of a Lawful General Order.








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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 youth, immaturity, and a diagnosis from the ship’s psychologist contribut ed to his misconduct.
2.       Applicant contends his post-service achievements are worthy of consideration.
Decision

Date: 20 1 2 02 23             Location: Washington D.C .        R epresentation : NONE

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 discharg e 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 identified two decisional issues for the Board’s consideration. The Board c omplete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention warning and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , UA, 2 specifications ) , Article 89 (Disrespect toward superior commissioned officer) , Article 92 (Failure to obey order or regulation , 2 specifications ) , and Article 107 (False official statement) . Based on the repeated offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing (for pattern of misconduct and commission of a serious offense) using the administrative board procedure on 30 Mar 2003 , the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant was separated from the Navy on 29 May 2003 with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends youth, immaturity, and a diagnosis from the ship’s psychologist contributed to his misconduct. While he may feel these were the underlying cause of his misconduct, the record clearly reflects his misconduct to be willful and demonstrated he was unfit for further service. The NDRB noted in the medical records that the Applicant reported to sick call aboard ship on 14 Jan 2003 complaining of stress and problems controlling his temper due to problems at home with his mother and her seeming neglect of his five year old brother. Two days later, a psychologist examined the Applicant and diagnosed him with Anti-Social Personality Traits. The Applicant was found “fit for full duty and responsible and accountable for his actions . ” The physician did note the Applicant had stated his desire to “get out of the Navy by any means possible ” and that “The patient’s chain of command shared emails from the patient’s sister who is extremely concerned about patient. There are clearly some incongruities with patient’s presentation and outside sources of information . ” After careful analysis of the available documentation, t he evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A discharge Under Other Than Honorable Conditions 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. The Applicant’s record of service contained one Page 13 retention warning and three NJPs for violations of UCMJ Articles 86 , 89, 92, and 107 . Violations of Articles 89, 92 , and 107 are considered serious offenses, punishable by a B ad C onduct or D ishonorable D ischarge and between six months to five years imprisonment if awarded at trial by courts-martial. After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.
: (Decisional) ( ) . The Applicant contends his post-service achievements are worthy of consideration. 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. The Applicant provided a personal statement claiming current employment and school attendance as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . 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 an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 the administrative separation 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 | 2008_Marine | MD0801152

    Original file (MD0801152.rtf) Auto-classification: Denied

    There was no evidence in the record, nor was any submitted by the Applicant, documenting he was not responsible for his actions or that the misconduct should be excused based on youth and immaturity. Again, 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, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. ” Additional Reviews :...

  • USMC | DRB | 2009_Marine | MD0902481

    Original file (MD0902481.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement, orto request a hearing before an administrative discharge board.The NDRB had a copy of the Applicant’s administrative separation package as well as the Applicant’s acknowledgement of rights in response to the pending administrative separation.The Applicant provided no documentation to rebut the government’s presumption of...

  • NAVY | DRB | 2007_Navy | ND0700756

    Original file (ND0700756.rtf) Auto-classification: Denied

    The Applicant’s record of service was marred by one retention warning, two NJPs and two Summary Court-Martials (SCM) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 87 (Missing movement),Article 90 (Willfully disobeying a commissioned officer), Article 92 (Dereliction of duty), Article 107 (False official statement), Article 134 (Drunkenness, Incapacitated for duty), and Article 134 (Breaking restriction). The Applicant contends that...

  • USMC | DRB | 2008_Marine | MD0800138

    Original file (MD0800138.rtf) Auto-classification: Denied

    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) -Divorce decree 20061121 DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2006_Navy | ND0600818

    Original file (ND0600818.rtf) Auto-classification: Denied

    Applicant did not have a personality disorder. Regarding the Applicant’s Issue 2, the Board determined that thisIssue is not an Issue which can form the basis of relief for the Applicant. Additional Issues: In addition to an Applicant’s submitted issues, the Board reviewed the Applicant’s discharge under the equity provision.When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.

  • NAVY | DRB | 2011_Navy | ND1100904

    Original file (ND1100904.rtf) Auto-classification: 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 .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 eligible for a...

  • USMC | DRB | 2010_Marine | MD1001589

    Original file (MD1001589.rtf) Auto-classification: Denied

    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 . ” 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...

  • NAVY | DRB | 2011_Navy | ND1101764

    Original file (ND1101764.rtf) Auto-classification: Denied

    : (Nondecisional)The Applicant requests his DD Form 214 be changed to reflect a Navy and Marine CorpsCommendation Medal he believes he was awarded post-service from the Navy.In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...

  • USMC | DRB | 2007_Marine | MD0700239

    Original file (MD0700239.rtf) Auto-classification: Denied

    The Board found that Issue(s)1-2: The Board determined that these Issue(s) are not issue(s) 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. The Applicant’s service was marred by three discharge warnings and two nonjudicial punishments for violating the UCMJ Article(s) 86 Unauthorized absence, 92 Failure to obey order, regulation, 107 False official statements, and 134 Indecent...

  • USMC | DRB | 2013_Marine | MD1300925

    Original file (MD1300925.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 personal appearance hearing for a period of fifteen...