Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1102086
Original file (ND1102086.rtf) Auto-classification: Denied

ex-SHSA, USN
Current Discharge and Applicant’s Request
Application Received: 20110907
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)        20020116 - 20020822     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020823     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031230      Highest Rank/Rate: SHSN
Length of Service: Y ear( s ) M onth( s ) 08 D a y ( s )
 Education Level:        AFQT: 36
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.00

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20030912 :      Article (Insubordinate conduct toward a petty officer, on divers occasions on or about 20030815 to 20030828, showed contempt towards SH2 H_)
         Article (General Article , communicating a threat; on or about 20030826 wrongfully communicate a threat to SH2 H_, saying, “you better talk right or I am going to bust you in the jaw”)
         Awarded: CCU Suspended:

- 20031118 :      Article (Failure to obey an order or regulation, having knowledge of a lawful order issued by OICNAVBRIG/CCU Puget sound, to wit: NAVBRIG/CCU SOP 500, dtd 20030423 on or about 20031017, fail to obey t he same by wrestling with SN M_ , USN)
         Article (False official statement to BU1 E_, USN, NAVBRIG/CCU Puget sound, to wit: “We were not horse playing, I was cracking my back” or words to that effect, which was totally false)
         Awarded : Susp ended:

- 20031210 :      Article (Absence without leave, failed to go on divers occasions at the time prescribed to CVN 70 restricted Personnel Musters)
         Awarded: 3 days Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20030912 :       For Commanding Officer’s NJP on 20030912 for violation of UCMJ A rticle s 91 and 134




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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 for service benefits.
2.       The Applicant contends his command treated him unfairly.
Decision

Date : 20 1 2 1009             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , on divers occasions failed to go at the time prescribed to CVN 70 restricted personnel musters ), Article 91 ( Insubordinate conduct toward a petty officer, on or about 20030815 to 20030828 on divers occasions showed contempt toward SH2 H_ ), Article 92 (Failure to obey an order or regulation, having knowledge of a lawful order issued by OICNAVBRIG/CCU, failed to obey the same by wrestling with SN M_, USN), Article 107 (False official statement, to BU1 E_, NAVBRIG/CCU Puget sound, to wit: “We were not horse playing, I was cracking my back” or words to that effect, which was totally false ) , and Article 134 ( General A rticle , on or about 20030826 wrongfully communicated a threat to SH2 H_ ) . Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement. However, the Applicant has a H K K separation code on his DD Form 214 , which indicates he wa ive d his right to request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade for 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.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his command treated him unfairly. The NDRB completed a thorough review of the Applicant’s service records and personal statement and found no unfair, improper, or inequitable treatment by his command nor did the Applicant provide any documentation or evidence to validate his contentions. On the other hand, it appears the Applicant’s command gave him multiple opportunities to correct his behavior. After his first NJP, he was sent to the Correctional Custody Unit but was expelled from that program due to continued misconduct. After his second NJP, his commanding officer informed him that he would recommend a General discharge. However, during the separation processing, the Applicant continued to engage in misconduct and so was ultimately discharged Under Other Than Honorable Conditions. With three NJPs , a retention warning , and several missed opportunities to correct his behavior in 16 months of service , his discharge Under Other Than Honorable Conditions for a Pattern of Misconduct 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 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), 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 | 2006_Navy | ND0600601

    Original file (ND0600601.rtf) Auto-classification: Denied

    Chronological Listing of Significant Service Events : 900401: Applicant to unauthorized absence at 0715.900404: Applicant from unauthorized absence at 1830 (3 days/surrendered).900413: NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 0715, 900401 to 1830, 900404.Violation of UCMJ, Article 90: Failure to obey a lawful command from a superior commissioned officer on or about 900331. Therefore, the NDRB determined that the reason for the Applicant’s discharge shall not...

  • NAVY | DRB | 2006_Navy | ND0600591

    Original file (ND0600591.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). ” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member - 4) (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USAR (DEP) 20001110 - 20010623 ELS USNR (DEP) 20021126 -...

  • NAVY | DRB | 2002_Navy | ND02-00550

    Original file (ND02-00550.rtf) Auto-classification: Denied

    I have worked in the same field since leaving the Navy and I'm responsible for my actions.I'm asking to have my discharge upgraded because I was so young and made mistakes but my hope is to not have this held against me my whole life. No indication of appeal in the record.910520: USS PUGET SOUND (AD 38) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation...

  • NAVY | DRB | 2003_Navy | ND03-01511

    Original file (ND03-01511.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. I just personally feel that I should have received my honorable discharge from the military based on my time in service. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade based on this reason.

  • NAVY | DRB | 2004_Navy | ND04-00319

    Original file (ND04-00319.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. No indication of appeal in the record.900130: CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:Naval Council of...

  • NAVY | DRB | 2006_Navy | ND0601136

    Original file (ND0601136.rtf) Auto-classification: Denied

    Elements of Discharge: [REQUESTED BY MEMBER] Discharge Process: Voluntary: Requested by MemberDate Member Requested Separation:20020507Member Requested Separation Due To: Characterization Requested:member Recognized Least Favorable:Discharge directed by (date): COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT PUGET SOUND (20020508)Narrative reason directed:Characterization directed: Date Applicant Discharged: 20020523 Additional Information Considered by Board Type of documentation submitted by...

  • NAVY | DRB | 2006_Navy | ND0600589

    Original file (ND0600589.rtf) Auto-classification: Denied

    040209: Pretrial agreement approved.Applicant from pretrial confinement (56 days).040210: Special Court Martial Charge I: violation of the UCMJ, Article 86: Specification: Did, on or about 030905, without authority, absent himself from his unit, to wit: VF-101, located at Virginia Beach, Virginia, and did remain so absent until he was apprehended on or about 031216. Sentence: Confinement for 75 days.040217: Applicant notified of intended recommendation for discharge with the least favorable...

  • NAVY | DRB | 2000_Navy | ND00-01078

    Original file (ND00-01078.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-SH1, USN Docket No. 3 positive urinalysis for cocaine since July 89. He should be separated from the U.S. Navy with a discharge characterization as warranted by his service record and VA treatment, if eligible, should be offered.900202: CNMPC directed the applicant's discharge type warranted by service record by reason of misconduct due to drug abuse (use).

  • NAVY | DRB | 2002_Navy | ND02-00651

    Original file (ND02-00651.rtf) Auto-classification: Denied

    ND02-00651 Applicant’s Request The application for discharge review, received 020409, requested that the characterization of service on the discharge be changed to honorable. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Letter from Applicant dated April 29, 2002 Applicant's DD Form 214 (2 copies) Letter from Applicant dated May 11, 2002 Letter to Applicant dated May 6, 2002 PART II - SUMMARY OF SERVICE...

  • NAVY | DRB | 2005_Navy | ND0500646

    Original file (ND0500646.rtf) Auto-classification: Denied

    [Statement listed as enclosure on the Commanding Officer’s undated letter, but not found in service record. ]UNDATED: Commanding Officer, USS SHILOH informed the Commander, Navy Personnel Command (PERS-832) of the Applicant's discharge with a characterization of general (under honorable conditions) by reason of alcohol abuse rehabilitation failure. FA K_'s (Applicant’s) recent NAVPERS 1070/613 warning advised him that any future deficiencies in conduct; violations of the UCMJ, or conduct...