Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201055
Original file (ND1201055.rtf) Auto-classification: Denied

ex-SHSA, USN
Current Discharge and Applicant’s Request
Application Received: 20120410
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)        20040123 - 20040909     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040910     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080924      Highest Rank/Rate: SHSN
Length of Service: Y ear( s ) M onth( s ) 15 D a y ( s )
 Education Level:        AFQT: 57
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.59

Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

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 w ants to use the GI Bill.
 2.       The Applicant contends his youth and immaturity contributed to his misconduct.
3 .       The Applicant contends his post-service conduct is worthy of an upgrade.
Decision

Date : 20130205             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’s record of service did not reveal any NAVPERS 1070/613 (Page 13) warnings , , or court s -martial. His command administratively processed for separation due to a pattern of misconduct . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant wants to use the GI Bill. 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.

: (Decisional) ( ) . The Applicant contends his youth and immaturity contributed to his misconduct. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of an upgrade . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Relief denied.

Although the Applicant’s service record was missing much documentation, the NDRB presumes regularity in government affairs and presumes that his command appropriately discharged the Applicant for a Pattern of Misconduct. Per Naval Military Personnel Manual Article 1910-140, a servicemember meets the requirements for administrative separation for a Pattern of Misconduct with an NJP - Page 13 retention warning - NJP. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant did not present evidence that he was improperly or inequitably discharged for a Pattern of Misconduct, and so the NDRB determined his discharge was proper and equitable.

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 | 2011_Navy | ND1101288

    Original file (ND1101288.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 | 2011_Marine | MD1101922

    Original file (MD1101922.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20070306 - 20070318Active: Period of Service Under Review: Date of Current Enlistment: 20070319Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20100622Highest Rank:Length of Service: Years Months04 DaysEducation Level: AFQT:71MOS: 7234Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD 214):Rifle...

  • NAVY | DRB | 2015_Navy | ND1501067

    Original file (ND1501067.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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...

  • NAVY | DRB | 2015_Navy | ND1500901

    Original file (ND1500901.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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...

  • NAVY | DRB | 2012_Navy | ND1200872

    Original file (ND1200872.rtf) Auto-classification: Denied

    Only the Board for Correction of Naval Records can grant this type of narrative reason change.The NDRB determined the Applicant should not have been medically separated but was properly separated for a Pattern of Misconduct. The NDRB conducted a thorough review of the available records, to include significant, credible evidence submitted by the Applicant. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2010_Navy | ND1000995

    Original file (ND1000995.rtf) Auto-classification: Denied

    Although the Applicant’s service record was incomplete, the NDRB must presume that the Navy separated the Applicant properly for a pattern of misconduct (NJP – Page 13 counseling – NJP) without any evidence to the contrary.Further, the Applicant’s record of service was taken into account when his command recommended him for a General (Under Honorable Conditions) discharge as many personnel with similar offenses receive an Under Other Than Honorable Conditions discharge. Relief...

  • NAVY | DRB | 2008_Navy | ND0801695

    Original file (ND0801695.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge.At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record...

  • NAVY | DRB | 2011_Navy | ND1101207

    Original file (ND1101207.rtf) Auto-classification: Denied

    I point all the blame on myself and take it in step.” The NDRB infers that the chance he seeks is to reenlist in the military.The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. The NDRB determined the discharge was proper and equitable.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...

  • NAVY | DRB | 2010_Navy | ND1001421

    Original file (ND1001421.rtf) Auto-classification: Denied

    The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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...

  • NAVY | DRB | 2010_Navy | ND1001975

    Original file (ND1001975.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. DEPARTMENT OF THE NAVYNAVAL...