Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201335
Original file (ND1201335.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20120604
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       EXPIRATION OF ACTIVE OBLIGATED SERVICE

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20030228 - 20030715     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030716     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070629      Highest Rank/Rate: AM3
Length of Service: Year(s) Month(s) 14 D ay(s)
 Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.16

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20070518 :      Article (Absence without leave , 4 specifications )
         Specification 1: On 20070202, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Duty section muster at HSL-51 Naval Air Facility Atsugi, Japan.
         Specification 2: On 20070211, without authority, go from his appointed place of duty, to wit: Detachment ONE workspace, located at HSL-51 Naval Air Facility Atsugi, Japan.
         Specification 3: On 20070419, without authority, go from his appointed place of duty, to wit: Detachment ONE workspace, located at HSL-51 Naval Air Facility Atsugi, Japan.
         Specification 4: On or about 0645, 20070426, without authority, absent himself from his unit, to wit: Detachment ONE workspace located at HSL-51 Naval Air Facility Atsugi, Japan, and remain ed absent until on or about 0715, 20070426.
          Awarded: Suspended:

- 20070612 :      Article (Absence without leave , 2 specifications )
         Specification 1: On or about 20070602, without authority, go from his appointed place of duty, to wit: Restriction Barracks, Bldg. 982, while on restriction status.
         Specification 2: On or about 20070604, without authority, go from his appointed place of duty, to wit: his appointment at Fleet and Family Service Center.
         Article (Failure to obey order or regulation - Attending church without proper authorization)
         Article (False official statements)
         Awarded: Suspended:

S CM :    SPCM:    C C :




Retention Warning Counseling:

- 20070518 :      For your violations of the UCMJ as evidenced by Commanding Officer’s NJP on 20070518; specifically for being absen t without authority (4 specifications).

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

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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 contends his discharge was inequitable , because it d oes not reflect that he reached his Expiration of Active Obligated Service (EAOS) per Naval Military Personnel Manual (MILPERSMAN) Article 1910-104 , and so he warrants an Honorable discharge based on the Enlisted Performance Evaluation average criteria.
2.       The Applicant contends his discharge was inequitable , because it does not reflect my overall honorable service of 3 years, 11 months, and 14 days .
3.       The Applicant contends his discharge was inequitable , because it does not take into account the specific reasons for his misconduct and inappropriately weighs them against the positive aspects of his service. He further contends that the stress of a new marriage in a new locale with a lack of an appropriate support system amounted to them being completely unprepared for the hardships of marriage in the military , which in tur n contributed to the slip in his performance.
 4.      The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.
Decision

Date: 20 1 3 0 410             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 NAVPERS 1070/613 (Page 13) warning and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 6 specifications) , Article 92 ( Failure to obey order or regulation, 1 specification) , and Article 107 ( False official statement, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because it does not reflect that he reached his EAOS per MILPERSMAN Article 1910-104, and so he warrants an Honorable discharge based on the Enlisted Performance Evaluation average criteria. He also contends his discharge was inequitable , because it does not reflect my overall honorable service of 3 years, 11 months, and 14 days . A review of the Applicant’s records revealed that he extended for 12 months beyond his initial four-year contract to obtain family sponsorship. His new obligated service was for 5 years. However, he never signed the paperwork for the one-year extension, and so the NDRB agrees with the Applicant that he only was obligated to serve for 4 years. Even with a four-year contract, the Applicant did not reach his EAOS and so his characterization of service was not determined per MILPERSMAN Article 1910-104. Just because a Sailor is eligible to be discharged 30 days prior to his EAOS, does not mean it automatically applies. Navy Personnel Command has to approve the early discharge, and this approval was never given. 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. During the Applicant’s service, he was found guilty of violating numerous UCMJ Articles, including the serious ones of Articles 92 and 107 that could have resulted in a Bad Conduct Discharge as the result of a Special Court-Martial. His command, however, opted for a lenient administrative discharge and recommended a very lenient General characterization. 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 equitable . Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it does not take into account the specific reasons for his misconduct and inappropriately weighs them against the positive aspects of his service. He further contends that the stress of a new marriage in a new locale with a lack of an appropriate support system amounted to them being completely unprepared for the hardships of marriage in the military, which in turn contributed to the slip in his performance. The NDRB recognizes serving in the U.S. Navy is challenging , particularly overseas . However, it must be noted that most members of the Navy serve honorably and , therefore , earn their H onorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure undeserving Sailors receive no higher characterization than is due . T he Applicant stated that he sought assistance from a chaplain and a Fleet and Family Service Center . In addition to these resources, there are others to provide support to Sailors and their families. After a complete review of the records and the Applicant’s statement, the NDRB determined his misconduct was not mitigated by his personal stressors as a newlywed and determined that he was still obligated to follow the rules and regulations essential to good order and discipline. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for upgrading his discharge. 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. Documentation provided by the Applicant included a personal statement, credit report, children’s birth certificate, spouse ’ s naturalization certificate and nurse ’ s license, evidence of college attendance, letters of recommendation, steady employment as an FAA - licensed helicopter mechanic, home ownership, and family stability. Although the Applicant provided much of the documentation as detailed in the Post-Service Conduct paragraph in the Addendum , completion of those 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. Although the Applicant’s post-service conduct is commendable, the NDRB determined his discharge characterization was equitable. 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. 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 | ND0600121

    Original file (ND0600121.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Documentation Only the service was reviewed. 900814: Applicant to unauthorized absence at 0730 on 900814.900816: Applicant from unauthorized absence at 0730 on 900816 (2 days/returned).900816: NJP for violation of UCMJ, Article 86: (9 specs),Specification 1: In that SR S_ R_ (Applicant), USN, USS MIDWAY, on active duty, did, on board USS MIDWAY, at or about 0900, 11...

  • NAVY | DRB | 2001_Navy | ND01-01054

    Original file (ND01-01054.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Thirty-three pages from applicant's service record Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN 910717 - 941011 HON USN 941012 - 980226 HON Inactive: USNR (DEP) 901123 - 910716 COG Period of Service Under Review :Date of Enlistment: 980227 Date of Discharge: 000721 Length of Service...

  • NAVY | DRB | 2007_Navy | ND0700001

    Original file (ND0700001.rtf) Auto-classification: Denied

    Complete Service Record: Complete Medical Record: Complete Discharge Package: Regarding propriety, the Board found the discharge: Regarding equity, the Board found the discharge: Discussion Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. 20030418: NJP for violations of UCMJ: Article 134: Drunkenness Article 86: Unauthorized absence Elements of Discharge:...

  • NAVY | DRB | 2010_Navy | ND1001250

    Original file (ND1001250.rtf) Auto-classification: Denied

    The Applicant contends his discharge was inequitable as he was not kicked out of the Navy and he had no NJPs on his record.As previously explained, the Applicant’s command opted not to separate him for the 2 Feb 2009 NJP (UCMJ Article 92 offense, commission of a serious offense) or the 8 May 2009 civilian conviction (Assault with a deadly weapon), which are separable offenses per the Naval Military Personnel Manual (MILPERSMAN). ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2012_Marine | MD1200416

    Original file (MD1200416.rtf) Auto-classification: Denied

    The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. ” 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...

  • USMC | DRB | 2011_Marine | MD1100630

    Original file (MD1100630.rtf) Auto-classification: Denied

    Due to the limited documentation provided by the Applicant to substantiate his post-service conduct, the NDRB determined an upgrade would be inappropriate. 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 .The Applicant remains eligible for a personal hearing for...

  • USMC | DRB | 2011_Marine | MD1101547

    Original file (MD1101547.rtf) Auto-classification: Denied

    For reasons undetermined, the Applicant was not processed for administrative separation from the Marine Corps for Misconduct-Drug Abuse, which would normally result in an Under Other Than Honorable Conditions discharge. Therefore, in accordance with the MARCORSEPMAN, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. ” Additional Reviews : After a document review has been conducted, former...

  • USMC | DRB | 2012_Marine | MD1201039

    Original file (MD1201039.rtf) Auto-classification: Denied

    Based on the offenses 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 purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1200299

    Original file (MD1200299.rtf) Auto-classification: Denied

    There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. 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...

  • NAVY | DRB | 2010_Navy | ND1001698

    Original file (ND1001698.rtf) Auto-classification: Denied

    Even though the Applicant said his commanding officer recommended a General (Under Honorable Conditions) discharge, the Separating Authority determined that an Under Other Than Honorable Conditions discharge was warranted.The Applicant contends he completed his full four years of service and wants his discharge characterization upgraded. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...