Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1101849
Original file (ND1101849.rtf) Auto-classification: Denied

ex-EN3, USN
Current Discharge and Applicant’s Request
Application Received: 20110802
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)        19980619 - 19980625     Active:   (RELAD) 19980626 - 20020625 HON
         USNR (IDT)       20021031 - 20030414 HON
          USNR     200 30414 - 20051211 HON

Period of Service Under Review:
 Date of Current Enlistment: 20051212     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080909      Highest Rank/Rate: EN2
Length of Service: Year(s) Month(s) 28 D ay(s)
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.6 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.04

Awards and Decorations ( per DD 214):      (3) NMCOSR (2) (2) ESWS (2) (2) GWA (8)

Periods of UA /C ONF :

NJP :

- 20080327 :      Article (Failure to obey order or regulation)
         Article (Drunken driving)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20080327 :      No specifics found in record

Administrative Corrections to the Applicant’s DD 214
Pending results of hearing
The NDRB did note administrative error(s) on the original DD Form 214:

          “ 05 DEC 12 ”
         “ 02 08 28 ”
        
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:        

Pertinent Regulation/Law
Pending results of hearing

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, 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 s 92 and 111 .



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

Applicant’s Issues

 1.       The Applicant contends he was not in the vehicle when the offenses took place and so could not be guilty of the Article 92 and 111 violations.
2.       The Applicant contends the Navy did not have a preponderance of the evidence to find the Applicant guilty of committing a serious offense per Naval Military Personnel Manual (MILPERSMAN) Article 1 910-142 .
 3.       The Applicant contends his post - service conduct is worthy of consideration for an upgrade .
4.       The Applicant contends his in-service conduct and performance outweighs his misconduct .

Decision

Date: 20 1 2 1022             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 1 specification) and Article 111 (Drunken driving, 1 specification). Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to co nsult with a qualified counsel and request an administrative board but did elect to submit a written statement .

 Prior to the NDRB hearing , the Applicant provided a second copy of the separation notification letter with the same date and the same incorrect social security number . On this newly provided copy, the Applicant elected to submit a written statement and requested an administrative separation board but waived the right to consult with counsel.

 Issues 1-2 : (Decisional) ( ) . The Applicant contends he was not in the vehicle when the offenses took place and so could not be guilty of the Article 92 and 111 violations. Further, he contends the Navy did not have a preponderance of the evidence to find the Applicant guilty of committing a serious offense per MILPERSMAN Article 1 910-142 . The Applicant was found guilty at NJP of violating UCMJ Articles 92 and 111. In order to find the Applicant guilty at NJP, his commanding officer only needed to believe by a preponderance of the evidence that the Applicant committed the misconduct. T he Applicant’s record reflects copies of the desk journal at CFA Yokosuka in which the Master - of - Arms manning the gate positively identified the Applicant after running his license plate number on their database. The record reflects the following desk journal entry : “ MA2 _ returned to MPHQ, checked the vehicle information and made a positive identification of [ Applicant ] driving the vehicle. ” The NDRB determined that a preponderance of the evidence existed for the Applicant to have been found guilty. Further, violating UCMJ Articles 92 and 111 warranted separation proceedings for commission of a serious offense per MILPERSMAN Article 1910-142. During the separation proceedings, the Applicant waived his right s to consult with counsel and request a hearing before an a dministrative s eparation bo ard, but elected to submit a rebuttal to the separation. At the NDRB hearing, t he Applicant produced a second separation notification that shows he elected to submit a statement and to request an administrative separation board. This second notification differed from the one found in his official records. The NDRB presumed regularity in government affairs and determined the notification in his records, where he waived the right to an administrative separation board, was the official one . Despite the Applicant’s testimony and contention that he was not driving the vehicle, t he NDRB determined the Applicant did not provide sufficient evidence to reverse the regularity of government affairs concerning the identification of the driver and his guilt at NJP . Relief denied.

: (Decisional) ( ) . The Applicant contends that his post - service conduct is worthy of consideration for an upgrade . The NDRB considers 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. The Applicant submitted his undergraduate degree, a copy of his university academic dean’s list accomplishment, and a positive background investigation check from the Department of Homeland Security. The Applicant also cares for his children as a single parent. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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 e stablishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his in-service conduct and performance outweighs his misconduct . The Applicant states his character is demonstrated by his fitness report marks and comments and his awards and decorations. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. 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 the discharge was proper and equitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further review from the NDRB. He may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .




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 | 2012_Navy | ND1200315

    Original file (ND1200315.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...

  • NAVY | DRB | 2014_Navy | ND1400387

    Original file (ND1400387.rtf) Auto-classification: Denied

    The Naval Discharge Review Board, however, included a Navy psychiatrist due to his claim of TBI.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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence...

  • NAVY | DRB | 2010_Navy | ND1000221

    Original file (ND1000221.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: Pertinent Regulation/Law A. Summary: After a thorough...

  • NAVY | DRB | 2009_Navy | ND0901041

    Original file (ND0901041.rtf) Auto-classification: Denied

    He was charged with knowingly operating a motor vehicle on a suspended license.Based on the offense(s) committed by the Applicant, command administratively processed for separation. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole...

  • NAVY | DRB | 2012_Navy | ND1200635

    Original file (ND1200635.rtf) Auto-classification: Denied

    The NDRB determined the narrative reason for separation of Misconduct (Serious Offense) was proper. The Applicant contends his post-service conduct warrants consideration for a change to his narrative reason for separation. ” 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.

  • NAVY | DRB | 2012_Navy | ND1201082

    Original file (ND1201082.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.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...

  • NAVY | DRB | 2008_Navy | ND0800122

    Original file (ND0800122.rtf) Auto-classification: Denied

    ” 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for...

  • NAVY | DRB | 2014_Navy | ND1400833

    Original file (ND1400833.rtf) Auto-classification: Denied

    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2009_Navy | ND0901400

    Original file (ND0901400.rtf) Auto-classification: Denied

    Furthermore, being subjected to punishment at an NJP proceeding does not precluded a service member from being administratively processed for separation since administrative separations are not considered punitive in nature.Based on a review of the evidence of record and evidence presented by the Applicant, the Board determined there was sufficient evidence to support a administrative separation based on misconduct due to the commission of a serious offense and that an upgrade to Honorable...

  • NAVY | DRB | 2010_Navy | ND1000528

    Original file (ND1000528.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 (SERIOUS OFFENSE). ” 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...