Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1101702
Original file (ND1101702.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20110711
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       CHANGE TO RE-3

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20050512 - 20050605     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050606     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081110      Highest Rank/Rate: O S3
Length of Service: Y ear s M onth s 05 D a ys
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.8 ( 6 )      Behavior: 2.8 ( 6 )        OTA: 3.17

Awards and Decorations ( per DD 214):      Rifle MM Pistol MM AAM NUC GCM NDSM ICM GWOTEM GWOTSM SSDR (2) OSR LOC

Periods of UA /C ONF :

NJP : 2

- 20080806 :      Article 92 (Failure to obey order or regulation , wrongfully provided alcohol to an underage sailor )
         Article 128 (Assault consummated by a battery , by grabbing and kissing a male S ailor on the neck )
         Awarded: RIR FOP RESTR EPD Suspended: FOP

- 20080903 :      Article 92 (Failure to obey order or regulation , wrongfully asking the S ailor he had assaulted if he wanted to talk after the captain had issued an order for him not to contact the sailor )
         Awarded : RESTR Susp ended:

S CM : NONE       SPCM: NONE       C C : NONE

Retention Warning Counseling : 1

- 20050605 :       For fraudulent induction by failing to disclose six speeding tickets

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ MILPERSMAN 1910-140 ”
        
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 :        

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 seeks an upgrade in his RE Code in order to re-enter the Navy as an OS2 .
2.       The Applicant contends his discharge was improper , because the P age 13 he received in 2005 was d eficient.
3 .       The Applicant contends his discharge was improper , because he was denied a court-martial and appeal.
 4 .       The Applicant contends he was hazed , sexually harassed , and inappropriately subjected to investigations.

Decision

Date: 20 1 2 0822             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 one 1070/613 (Page 13) warning and two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications : Specification 1: Wrongfully provided alcohol to an underage sailor, Specification 2: Wrongfully asking the sailor he had assaulted if he wanted to talk after the captain had issued an order for him not to contact the sailor) and Article 128 (Assault consummated by a battery, by grabbing and kissing a male sailor on the neck). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his right to consult with a qualified counsel and request an administrative board . By a unanimous vote, the Administrative Separation Board determined that the preponderance of the evidence supported separation for a Pattern of Misconduct and Homosexual Cond uct. The b oard recommended that the Applicant be separated from the Navy with a General (Under Honorable Conditions) character of service. The Applicant’s commanding officer concurred with the outcome of the board, however, he recommended that the Applicant be separated with an Hon orable character of service.

: (Nondecisional) The Applicant seeks an upgrade in his RE Code in order to re-enter the Navy as an OS2 . 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 B oard for Correction of Naval Records can make changes to reenlistment codes , reinstate a Sailor, and award back pay . 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. Additionally, the NDRB does not have the authority to reinstate a former Sailor or award back pay. The NDRB is only authorized to review the propriety and equity of a discharge.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because the P age 13 he received in 2005 was deficient. The Applicant received a Page 13 retention warning for failure to disclose six pre-service speeding tickets during the enlistment process. The NDRB reviewed the Page 13 warning and the documentation provided by the Applicant and determined that the Page 13 was proper and documented tickets that were not on the disclosure sheet provided by the Applicant prior to enlistment. Relief denied.

 : (Decisional) ( ) . The Applicant contends his discharge was improper , because he was denied a court-martial and appeal. At the time of the Applicant’s NJPs, he was attached to a naval vessel and did not have the right to request court-martial in lieu of NJP. A complete review of the Applicant’s records did not reveal that the Applicant had been denied any appeals , access to counsel, or courts-martial that he had a right to per Naval regulations. Relief denied.
4: (Decisional) ( ) . The Applicant contends he was hazed , sexually harassed , and inappropriately subjected to investigations by members of his command. Besides th e Applicant’s statement submitted with his DD Form 293, there is no evidence to suggest that the Applicant was hazed , sexually harassed , or subjected to investigations by members of his command at any time during his enlistment. 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 PATTERN OF MISCONDUCT . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2013_Navy | ND1300717

    Original file (ND1300717.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...

  • USMC | DRB | 2009_Marine | MD0901731

    Original file (MD0901731.rtf) Auto-classification: Denied

    The Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety.Although the Applicant’s record of service contained no documentation of sub-standard performance or misconduct, it did provide ample information that he would do anything to get out of the Marine Corps. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary...

  • USMC | DRB | 2010_Marine | MD1002098

    Original file (MD1002098.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. Paragraph 1105,...

  • NAVY | DRB | 2012_Navy | ND1200295

    Original file (ND1200295.rtf) Auto-classification: Denied

    Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repeal of the “Don’t Ask, Don’t Tell” law, service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Admission was the only basis for discharge. However, pursuant to Public Law 111-321, and in accordance with the guidance set forth in the Under Secretary of Defense (P&R)...

  • NAVY | DRB | 2013_Navy | ND1301763

    Original file (ND1301763.rtf) Auto-classification: Denied

    ” 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. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2014_Marine | MD1400252

    Original file (MD1400252.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...

  • USMC | DRB | 2011_Marine | MD1100298

    Original file (MD1100298.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. After considering the record, and the evidence provided by the Applicant, the NDRB determined an upgrade to General (Under Honorable Conditions) is warranted. ” 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...

  • NAVY | DRB | 2011_Navy | ND1100196

    Original file (ND1100196.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to re-enlist in the Armed Forces.2. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. ” 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...

  • NAVY | DRB | 2013_Navy | ND1301082

    Original file (ND1301082.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: END OF OBLIGATED SERVICE Summary of Service Prior Service: USNR (DEP)19951229 - 19960115 USNR19960116 - 20010115USNR-R20010116 - 20010117USNR 20010118 - 20031213USNR 20031214 - 20071201USNR 20071202 - 20110103 Period of Service Under Review: Date of Current Enlistment: 20110104Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20110914Highest Rank/Rate:ADCLength of Service:Year(s)Month(s) 11...

  • NAVY | DRB | 2011_Navy | ND1100238

    Original file (ND1100238.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant contends his post-service achievements warrant consideration for a discharge upgrade. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...