Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1002267
Original file (ND1002267.rtf) Auto-classification: Denied

ex-QMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100916
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)        20000125 - 20000207     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20000208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20021114      Highest Rank/Rate: QM3
Length of Service : Y ear ( s ) M onth ( s ) 7 D a y ( s )
Education Level: +       AFQT: 81
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 3.50

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :
- 20020930 :      Article (UA, under 24 hrs)
         Article 134.76 (Drunkenness)
         Article 134.91 (Jumping from a vessel into the water)
         Awarded: Suspended:

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:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ HKQ ”

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:        


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

Applicant’s Issues

 1 .       The Applicant contends his record of service, as evidenced by high performance reviews and the Navy and Marine Corps Achievement Medal he received, warrants consideration for upgrading his discharge. He further contends his discharge was inequitable , because it was based on an isolated incident in 35 months of service with no other adverse action.
2.       The Applicant states he was tried in absentia and without counsel .

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 on e non-judicial punishment for violations of the UCMJ : Article 86 (Unauthorized a bsence, 1 specification), Article 134 (General Article, d runkenness, 1 specification), and Article 134 (General Article, j umping from vessel into the water, 1 specification). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends his record of service, as evidenced by high performance reviews and the Navy and Marine Corps Achievement Medal he received for performing his duties, warrants consideration for upgrading his discharge. He further contends his discharge was inequitable , because it was based on an isolated incident in 35 months of service with no other adverse action. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Nav y to maintain proper order and discipline. J umping from a vessel into the water is a serious offense that warrants separation re gardless of performance, grade, or time in service. This usually results in an unfavorable characterization of discharge 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. The Applicant wrongfully jumped from a vessel into the water, as well as committed violations of drunkenness and unauthorized absence . 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 of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends he was tried in absentia and without counsel , suggesting his rights were violated . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his rights were violated and his discharge was improper and inequitable. According to regulations, a n accused does not have the right to counsel for NJP as he would for a court-martial . Regulations do permit the Applicant to waive his right to appear at NJP proceedings. Therefore, if the Applicant did not appear, the Board presumes regularity in that he waived that right. There was no evidence found in the Applicant’s service record for the Board to determine whether he waive d or exercised his right to a ppear at the NJP proceedings . There fore , the NDRB presumes regularity in the conduct of NJP proceedings. The NDRB also discerned no impropriety or inequity in the discharge process. 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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-martial for violation of the UCMJ, Article 134, Jumping from vessel into the water.


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 | ND1001911

    Original file (ND1001911.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade for employment opportunities.2. Representation: 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 discharge if such change is...

  • NAVY | DRB | 2005_Navy | ND0500591

    Original file (ND0500591.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized and the reason for the discharge be changed to “entry level separation”. PART I - APPLICANT’S ISSUES AND DOCUMENTATION In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 89, disrespect toward superior commissioned officer, Article 110, hazarding a vessel, and Article 134,...

  • NAVY | DRB | 2009_Navy | ND0902500

    Original file (ND0902500.rtf) Auto-classification: Denied

    Based on the offenses committed by the Applicant, command administratively processed for separation. 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 foundTherefore, 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...

  • NAVY | DRB | 2011_Navy | ND1100619

    Original file (ND1100619.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends the Navy never gave him an opportunity to go to drug and alcohol rehabilitation treatment.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...

  • NAVY | DRB | 2012_Navy | ND1201538

    Original file (ND1201538.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: Pertinent Regulation/Law A. Relief denied.Summary:...

  • USMC | DRB | 2015_Marine | MD1401595

    Original file (MD1401595.rtf) Auto-classification: Denied

    DEPARTMENTOFTHE NAVYNAVALDISCHARGEREVIEWBOARD(NDRB) DISCHARGEREVIEWDECISIONALDOCUMENTAPPLICANT'SISSUESI.TheApplicantcontendsthathe signedpaperworkthatstatedhewouldreceiveaGeneral,UnderHonorableConditions dischargeifhesuccessfullycompletedhisrestriction.DECISIONDate: 20141204 DOCUMENTARY REVIEW Location:WASHINGTOND.C. Representation:NONE Byavoteof5-0theCharacterizationshall remainUNDEROTHERTHANHONORABLECONDITIONS.Byavoteof5-0theNarrativeReason shallremain...

  • NAVY | DRB | 2006_Navy | ND0600563

    Original file (ND0600563.rtf) Auto-classification: Denied

    APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated As submittedApplicant’s issues, as stated on the application and/or attached document/letter: “The discharge should be upgraded to General under Honorable Conditions because the discharge came about from a single event that snowballed into a series of events that led to the SCM. After the initial event I was on restriction for 30 days. ” 940712: BUPERS directed the Applicant's discharge by reason of misconduct due to a pattern of...

  • USMC | DRB | 2013_Marine | MD1300958

    Original file (MD1300958.pdf) Auto-classification: Denied

    MD13-00958 a ~ ' ,ex-PFC, USMC CURRENT DISCHARGE AND APPLICANT *§ REQUEST Application Received: 20130314 Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: (per DD 214) MISCONDUCT Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS] Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS) Narrative Reason change to: NONE REQUESTED SUMMARY OF SERVICE Prior Service: Inactive: USMCR...

  • USMC | DRB | 2013_Marine | MD1301098

    Original file (MD1301098.pdf) Auto-classification: Denied

    MD13-010938 NN .ex-Pvt, USMC CURRENT DISCHARGE AND APPLICANT’S REQUEST Application Received: 20130416 Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: (per DD 214) MISCONDUCT Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS} Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS) Narrative Reason change to: NONE REQUESTED SUMMARY OF SERVICE Prior Service: : Inactive: USMCR...

  • USMC | DRB | 2013_Marine | MD1301253

    Original file (MD1301253.pdf) Auto-classification: Denied

    Key: NFIR - Not found in record ‘RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water Docket No, MD13-01253 TYPES OF DOCUMENTS SUBMITTED/REVIEWED Related to Military Service: DD 214: K Service/Medical Record: Dd Other Records: CI Related to Post-Service Period: ....