Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201205
Original file (ND1201205.rtf) Auto-classification: Denied

ex-AZAR, USN
Current Discharge and Applicant’s Request
Application Received: 20120501
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 19940513 - 19940706          Active:            19940707 - 19980705 HON
                           Active:  USNR     19980706 - 20010214 HON
                           Active:  USN      20010215 - 20050218 HON
Period of Service Under Review:
Date of Current Enlistment: 20050219     Age at Enlistment:
Period of E nlistment : Years 28 Months Extension
Date of Discharge: 20100311      Highest Rank/Rate: AZ2
Length of Service: Y ear( s ) M onth( s ) 23 D a y ( s )
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.6 ( 8 )      Behavior: 4.1 ( 8 )        OTA: 4.23

Awards and Decorations ( per DD 214):      NMCM (2) JMU A (4) (3) (4) (3) (2)

Periods of UA :

NJP :     S CM :             CC:      Retention Warning Counseling :

SPCM:

- 20090606 :       Art icle (Rape, sexual assault, and other sexual misconduct - Wrongful sexual contact)
         Sentence : 6 months (P retrial : 20090411 - 20090628, 79 days; C onf : 20090629 - 20090815, 47 days)

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS MEDAL (2), JOINT MERITORIOUS UNIT AWARD, NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (4), NAVY “E” RIBBON (3), GOOD CONDUCT MEDAL (4), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, HUMANITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), NA V Y AND MARINE CORPS OVERSEAS SERVICE RIBBON, NATO MEDAL (2), FLAG LETTER OF COMMENDATION, ENLISTED AVIATION WARFARE SPECIALIST ”
         “ 15 03 30 ”
         “ 11APR09 TO 28JUN09, 29JUN09 TO 14AUG09 ”

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 29, effective 10 November 2009 until 17 August 2011, 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 120 .



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

Applicant’s Issues

 1.        The Applicant contends he was set up , because he was different and they did not like what he represented.
2.       The Applicant contends that because of a lack of due process , he was advised to take a deal.
3.       The Applicant contends his post-service conduct is worthy of an upgrade.
Decision

Date : 20 1 3 0301             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 included for of the UCMJ: Article (Rape, sexual assault, and other sexual misconduct - Wrongful sexual contact). Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant committed M isconduct (Serious Offense) and Homosexual C onduct. In addition, the administrative board voted 3-0 to recommend separation with a General (Under Honorable Conditions) discharge.

: (Decisional) ( ) . The Applicant contends he was set up , because he was different and they did not like what he represented . The record of evidence clearly shows the Applicant pled guilty at a Special Court-Martial to violating UCMJ Article (Rape, sexual assault, and other sexual misconduct - Wrongful sexual contact). If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. Instead the Applicant pled guilty, the strongest form of proof. Further, the Applicant had an administrative separation board where he had the opportunity to mount a defense against the charges. The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant committed Misconduct (Serious Offense) and Homosexual Conduct. In addition, the administrative board voted 3-0 to recommend separation with a General (Under Honorable Conditions) discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends that because of a lack of due process , he was advised to take a deal. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The Applicant was afforded all rights and due process. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. 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 documentary 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 from an unfavorable discharge 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. The characterization of service received was appropriate considering the length of service and UCMJ violation. 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 | 2014_Navy | ND1400474

    Original file (ND1400474.rtf) Auto-classification: Denied

    The record shows that there were letters from both HA A______ and CTT2 M______ submitted as evidence at his Administrative Separation Board. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy,...

  • NAVY | DRB | 2011_Navy | ND1101401

    Original file (ND1101401.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade in order to qualify for the G.I. ” 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 | 2011_Navy | ND1101391

    Original file (ND1101391.rtf) Auto-classification: Denied

    Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.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...

  • NAVY | DRB | 2014_Navy | ND1400894

    Original file (ND1400894.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants his reason for discharge changed to a medical disability.2. After carefully reviewing the Applicant’s service, and service medical records, the NDRB found no evidence, nor did the Applicant provide any evidence, that the Applicant was sexually assaulted, or raped, while in the service, and by another male service member. ” Additional Reviews : After a...

  • USMC | DRB | 2014_Marine | MD1401248

    Original file (MD1401248.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 remainUNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remainMISCONDUCT.The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a...

  • USMC | DRB | 2014_Marine | MD1400855

    Original file (MD1400855.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 | 2011_Navy | ND1100698

    Original file (ND1100698.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his discharge is inequitable as it was based on an isolated incident in 14 years of service with no other adverse actions.2. 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...

  • USMC | DRB | 2011_Marine | MD1101932

    Original file (MD1101932.rtf) Auto-classification: Denied

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

  • NAVY | DRB | 2011_Navy | ND1101722

    Original file (ND1101722.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks a change to his RE Code.2. Representation: none 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...

  • USMC | DRB | 2009_Marine | MD0900788

    Original file (MD0900788.rtf) Auto-classification: Denied

    The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, and Discharge Process, the Board found Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present. ” Additional Reviews : Subsequent to a document review, former members are eligible...