Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1101046
Original file (ND1101046.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110316
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20070522 - 2007091 8     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070919     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081114      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 27 D a y ( s )
 Education Level:        AFQT: 98
Evaluation M arks:         Performance: NA   Behavior: 1 .0 ( 2 )        OTA: 1 .0 (2)

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20080808 :      Article (Failure to obey order or regulation , possessed and consumed alcohol in barracks, 20080712 )
         Article ( R eckless operation of vehicle , Eglin AFB, 20080805 )
         Article ( Operate a vehicle without valid state issued driver license , Eglin AFB, 20080805 )
         Awarded: (to E-2) Suspended: (suspend 6 months)

- 20081024 :      Article ( Drunken driving, BAC 0.216 , 20080916 )
         Awarded : (to E-1) Susp ended:

S CM :    SPCM:    CC: None

C C : Arrest

- 20080916 :       Offense: DUI and driving while license suspended and/or revoked, Okaloosa County, Flori d a

Retention Warning Counseling :

- 2008 08 1 5 : F or CO’s NJP of 8 Aug 2008 for UCMJ, Article 92: Disobeying an Order or Regulation, Article 134:
                  Federal As similative Crimes Act (Failure to maintain a Valid State Driver’s License).








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), Change 23, effective 20 May 2008 until 9 November 2009, 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.        The Applicant contends his discharge was improper , because he was found guilty at NJP before civil charges of DUI, careless driving, and driving with a suspended license could be adjudicated in civil court.

Decision

Date: 20 1 2 02 16             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 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 identif ied one decisional issue for the Board ’s consideration . T he Board complete 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 proprie ty. The Applicant’s record of service include d one NAVPERS 1070/613 (Page 13) retention warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, on or about and previous to on several occasions, 12 Jul 2008, possessed and consumed alcohol while in the NAVSCOLEOD barracks ), Article 111 (Drunken driving, BAC .216 , 16 Sep 2008 on Highway 98 Okaloosa County, FL ), and Artic le 134 ( General Article, 2 specifications: r eckless operation of a vehicle, on board Eglin AFB, 5 Aug 2008 , and o perat ing a vehicle without a valid state issued driver ’s license , on board Eglin AFB, 5 Aug 2008 ) . The record also revealed one civil arrest for DUI and driving with a suspended or revoked license in Okaloosa County, FL. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure on 28 Oct 2008 , the Applicant elected his right to consult with qualified counsel, but waived rights to submit a written statement and request a General Court-Martial Convening Authority review . In the Commanding Officer’s 14 Nov 2008 notification of administrative separation memorandum to the Commander , U.S. Navy Person nel Command, he state s , “(the Applicant) is unwilling to adhere to the rules and regulations of this command and the U.S. Navy as evidenced by his two nonjudicial punishments within two months. Based on his documented pattern of misconduct, I strongly recommend that (he) be separated from the Naval Service by reason of misconduct due to a pattern of misconduct, and that his characterization of service be General (Under Honorable Conditions). ” The Applicant was separated from the Navy on 14 Nov 2008 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends his discharge was improper, because he was found guilty at NJP before civil charges of DUI, careless driving, and driving with a suspended license could be adjudicated in civil court. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial, nonjudicial punishment, or in civil court. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A General (Under Honorable Conditions) d ischarge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service included violation s of UCMJ Article s 92 and 134 , which are considered serious offenses and are punishable by a B ad C onduct Discharge and confinement for six months minimum if adjudicated at trial by c ourts- m artial. Instead of referring the Applicant to trial by court-martial , however , his command opted to process him for administrative separation on the basis of a pattern of misconduct. Per the Nav al Military Personnel Manual (MILPERSMAN), members may be separated when during the current enlistment they have two or more nonjudicial punishments , court-martial s or civilian convictions (or combination thereof) and have violated a NAVPERS 1070/613 counseling retention warning. The Applicant’s record contained two NJPs and a NAVPERS 1070/613 retention warning , and therefore met the requirements set forth in the MILPERSMAN under section 1910-140 (separation by reason of misconduct - pattern of misconduct) .

 With regard to the Applicant’s contention that his command improperly imposed NJP prior to civil court adjudication (relating to his arrest for DUI, careless driving, and driving with a suspended license), since NJP is an administrative procedure (non-punitive) and not a trial, the Applicant’s Commanding Officer had the proper authority and jurisdiction to impose NJP prior to any civil court proceeding . The burden of proof required during an NJP proceeding is “ preponderance of the evidence , ” which means after evaluating all the available information, the evidence presented indicates that it is “ more likely than not ” that the accused committed the offense or offenses to which charged. Based on the evidence available to the Applicant’s Commanding Officer during the NJP (to include BAC toxicology information) , he found that the Applicant was guilty of violation of UCMJ Article 111 (DUI) and punished him in accordance with the Article 15 (NJP) punishment limitations set forth in the Manual for Courts Martial United States. T he Applicant’s c onduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , regardless of his grade and length of service , and f alls short of w hat is required for an upgrade in the characterization of service to Honorable. Accordingly, the Board determined this issue did not provide a basis for which relief could be granted. 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

  • NAVY | DRB | 2011_Navy | ND1101303

    Original file (ND1101303.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends there was no basis for separation due to a pattern of misconduct. 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 , but the Narrative Reason for Separation shall change to...

  • USMC | DRB | 2008_Marine | MD0801459

    Original file (MD0801459.rtf) Auto-classification: Denied

    The Applicant should be aware completion 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 to determine if post-service conduct mitigates the reason for the characterization of discharge.Besides the personal statement provided on the DD Form-293, the Applicant provided additional statements and evidence of The Board determined based on the limited documentation provided an upgrade would be...

  • NAVY | DRB | 2010_Navy | ND1001764

    Original file (ND1001764.rtf) Auto-classification: Denied

    Based on the Applicant’s repeated alcohol rehabilitation failures after receiving Level II and Level III alcohol rehabilitation treatment, to include two DUIs subsequent to completing treatment (3 career incidents involving driving while under the influence), and a previous COMNAVPERSCOM waiver of administrative separation(Feb 2006), his command processed for separationin accordance with the Naval Military Personnel Manual (MILPERSMAN). On 24 Oct 2008, the Applicant’s Commanding Officer...

  • USMC | DRB | 2011_Marine | MD1100647

    Original file (MD1100647.rtf) Auto-classification: Denied

    I have reviewed the Senior Member’s report and agree with the board’s findings and recommendations that (the Applicant) be discharged from the United States Marine Corps with an other than honorable conditions characterization of service.’ ” On 10 Jul 2009, the Separation Authority concurred with the findings and recommendations of the Admin Board and directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct...

  • NAVY | DRB | 2001_Navy | ND01-00196

    Original file (ND01-00196.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 961030: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was...

  • NAVY | DRB | 2015_Navy | ND1500374

    Original file (ND1500374.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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE. ” Additional Reviews : After a...

  • USMC | DRB | 2012_Marine | MD1201586

    Original file (MD1201586.rtf) Auto-classification: Denied

    : (Nondecisional) The Applicant seeks to have his RE-code changed.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. Additionally, the NDRB has no authority to upgrade a discharge based on this issue. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • NAVY | DRB | 2006_Navy | ND0600879

    Original file (ND0600879.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ misconduct or RE-3. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. The names and...

  • USMC | DRB | 2011_Marine | MD1100326

    Original file (MD1100326.rtf) Auto-classification: Denied

    Based on the significant misconduct of record, and without the Applicant’s Pro/Con mark history, the NDRB determined that the Applicant’s command was justified in awarding him a General (Under Honorable Conditions) characterization of service upon separation.Issues 1-2: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities and to obtain veteran education benefits. Relief denied.Summary: After a thorough review of the available evidence, to include the...

  • ARMY | BCMR | CY2010 | 20100008981

    Original file (20100008981.txt) Auto-classification: Denied

    The applicant was accordingly discharged on 2 January 1990 under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the offence for which he was discharged and is appropriate for the applicant's overall record of military service.