Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1002266
Original file (ND1002266.rtf) Auto-classification: Denied

ex-ATAR, USN
Current Discharge and Applicant’s Request
Application Received: 20100907
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)        19990212 - 19990412     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990413     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020403      Highest Rank/Rate: AT3
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.86

Awards and Decorations ( per DD 214):      NONE

Periods of UA :

NJP :     SPCM:    CC:      Retention Warning Counseling :

S CM :

- 20011121 :       Art icle (Disorderly conduct) [Extracted from Evaluation Report and Counseling Record, and NAVPERS 1070/604]
         Sentence :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ MILPERSMAN 1910-142 ”

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 :        


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

Applicant’s Issues

 1.       The Applicant wants his discharge upgraded to improve his opportunities to find employment as a firefighter or a police officer.
2.       The Applicant contends his discharge was based on an isolated incident with no other adverse action .
 3.       The Applicant contends he was not well - advised at the time of his separation , as he did not realize he was agreeing to a dishonora ble discharge without a trial.

Decision

Date: 20 1 1 1214             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 did include one S ummary C ourt- M artial for violation of the Uniform Code of Military Justice (UCMJ): Article 134 ( General / Disorderly conduct , 1 specification ). Based on the offense committed by the Applicant, command administratively processed for separation. 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 .

: (Non-decisional) The Applicant wants his discharge upgraded to improve his opportunities to find employment . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident with no other adverse action. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. However, per the Manual for Courts-Martial United States, D isorderly C onduct is not an offense that warrants a punitive discharge and therefore is not considered a serious offense and does not warrant separation per Naval Military Personnel Manual (MILPERSMAN) Article 1910-142 for Misconduct (Serious Offense) . Therefore, the discharge was improper. In cases where no other reason for separation set forth in the MILPERSMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since there is no other narrative reason for separation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.

Characterization of service a t discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the n arrative reason for separation. During the Applicant’s almost three years of service, he had a S ummary C ourt- M artial for disorderly conduct. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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. 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. After a thorough review of the Applicant’s service records, the NDRB determined that his service had been honest and faithful but significant negative aspects of the member’s conduct outweighed the positive aspects of the member’s service record. Therefore, the Applicant’s characterization of service will change to General (Under Honorable Conditions). Relief warranted.
: (Decisional) ( ) . The Applicant contends he was not well - advised at the time of his separation, as he did not realize he was agreeing to a D ishonorable D ischarge without a trial. Due to the non-availability of an administrative separation package, the Board presumes regularity in that the Applicant was notified of being discharged for commission of a serious offense and notified that he could receive an Under Other Than Honorable Conditions characterization of service, which is not considered a Dishonorable Discharge. A Dishonorable Discharge is a punitive discharge that can only be given as the result of a conviction at a General Court-Martial. The Applicant was administratively separated after being found guilty of Article 134 of the UCMJ at a Summary Court-Martial . Relief not warranted.

 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 change to . Full relief to Honorable was not granted due to the misconduct of record. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 25 January 2001 until
21 August 2002, 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 .


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 | ND1001197

    Original file (ND1001197.rtf) Auto-classification: Denied

    On 29 June 2008, the Applicant was discharged with a General (Under Honorable Conditions) characterization for Misconduct (Civilian Conviction) and was not recommended for reenlistment or reentry. 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 narrative reason for separation shall change to , however, the awarded characterization of service shall . ”...

  • NAVY | DRB | 2010_Navy | ND1001174

    Original file (ND1001174.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20041217 - 20050126Active: Period of Service Under Review: Date of Current Enlistment: 20050127Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20070928Highest Rank/Rate:ABFANLength of Service: Year(s)Month(s)02 Day(s)Education Level:AFQT: 66EvaluationMarks:Performance:3.5(4)Behavior:2.5(4)OTA: 3.21Awards and Decorations (per DD 214):Periods...

  • NAVY | DRB | 2014_Navy | ND1401100

    Original file (ND1401100.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...

  • NAVY | DRB | 2009_Navy | ND0902249

    Original file (ND0902249.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From/To Representation:From/ToCongress member: Other Documentation: Pertinent Regulation/Law A. The Board determined an upgrade would be...

  • NAVY | DRB | 2009_Navy | ND0901087

    Original file (ND0901087.rtf) Auto-classification: Denied

    The command granted his request and discharged him with an Under Other than Honorable characterization of service based on the offenses committed. 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...

  • NAVY | DRB | 2011_Navy | ND1101528

    Original file (ND1101528.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/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2012_Navy | ND1200558

    Original file (ND1200558.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks to change his RE code to RE-1 and possibly reenlist.2. 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...

  • NAVY | DRB | 2008_Navy | ND0801335

    Original file (ND0801335.rtf) Auto-classification: Denied

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

  • NAVY | DRB | 2015_Navy | ND1500018

    Original file (ND1500018.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 remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (OTHER). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...

  • NAVY | DRB | 2012_Navy | ND1201417

    Original file (ND1201417.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...