Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201486
Original file (ND1201486.rtf) Auto-classification: Denied

ex-ICFN, USN
Current Discharge and Applicant’s Request
Application Received: 20120626
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)        20030605 - 20031215     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20031216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070126      Highest Rank/Rate: IC3
Length of Service: Year(s) Month(s) 11 D ay(s)
 Education Level:        AFQT: 39
Evaluation M arks:         Performance: 2.7 ( 3 )      Behavior: 2.0 ( 3 )        OTA: 2.45

Awards and Decorations ( per DD 214):      (3)

Periods of C ONF :

NJP :

- 20061207 :      Article (Absence without leave , 3 specifications )
         Specification 1: 0700, 20061104-0700, 20061106, 2 days
         Specification 2: 0700, 20061112-0700, 20061114, 2 days
         Specification 3: Failure to attend DUI fair
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Route a proper report chit
         Specification 2: Sleeping during hours
         Awarded: Suspended:

- 20070109 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Article 107 (False official statement)
          Awarded: Suspended:

S CM :    SPCM:

C C :

- 20060706 :       Offense: Reckless driving
         Sentence : $500.00 fine, 106.00 court costs, sentenced 60 days (50 days suspended) plus operator’s license suspended for 60 days

Retention Warning Counseling:

- 20061207 :      For Commanding Officer’s NJP held on 20061207 for violation of UCMJ Article 86 , UA .

NDRB Documentary Review Conducted (date):        20110915
NDRB Documentary Review Docket Number:   ND10-01514
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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 11 June 2008, 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 107 .



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

Applicant’s Issues

 1.       The Applicant contends his command did not support him after the death of his father and the subsequent financial hardships his family encountered.

Decision

Date: 20 1 3 0620             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 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 NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 4 specifications ) , Article 92 ( Failure to obey order or regulation, 2 specifications ) , and Article 107 (False official statement, 1 specification) , and one civilian conviction for reckless driving . 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 and submit a written statement .

: (Decisional) ( ) . The Applicant contends his command did not support him after the death of his father and the subsequent financial hardships his family encountered. T he Applicant contends he should have been separated on a Hardship discharge. A Hardship discharge may be granted i f the hardship is not temporary, the Sailor has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and there is no other means of alleviation reasonably available. The Applicant did not provide sufficient information to the NDRB to demonstrate he properly requested a Hardship discharge or that he met the criteria for a Hardship discharge. Instead, he contends that all of his requests were denied , although the Applicant’s record reflects no reference to requests for a H ardship discharge. However, even if the Applicant could show he met the criteria for a Hardship discharge, it would neither amount to a justification nor a defense for the Applicant’s unauthorized absences and failures to obey orders and regulations. The Applicant testified that he had made an attempt to see the Chaplain to deal with his bereavement but then never made his appointment because he felt the Chaplain was too busy. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the other numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Relief Society, Family Advocacy Programs, or even the Red Cross. On 8 and 16 November 2006, the Applicant’s record did reflect the use of m edical professionals aboard the USS Harry S . Truman during which time he was diagnosed with Bereavement but found fit for full duty and responsible for his own actions. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct and further determined his discharge was proper and equitable. 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 T herefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for additional reviews from the NDRB. H e may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for any further reviews. Their website is 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 | 2010_Navy | ND1001514

    Original file (ND1001514.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks a discharge upgrade to obtain veteran education benefits.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain...

  • NAVY | DRB | 2009_Navy | ND0900829

    Original file (ND0900829.rtf) Auto-classification: Denied

    Therefore, relief is denied.After a thorough review of the available evidence, to include the Former ser Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, theBoard found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...

  • NAVY | DRB | 2008_Navy | ND0801005

    Original file (ND0801005.rtf) Auto-classification: Denied

    Decision Date: 20080821Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.Discussion :() .The Applicant contends his characterization should be upgraded because his discharge was improper in that his civilian misconduct charges were dismissed.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the...

  • 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 | 2015_Marine | MD1500426

    Original file (MD1500426.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warnings; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation; 2 specifications), and Article 107 (False official statements); and for of the UCMJ: Article 86 (Absence without leave; 3 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 2 specifications), Article 92 (Failure to obey...

  • NAVY | DRB | 2011_Navy | ND1100156

    Original file (ND1100156.rtf) Auto-classification: Denied

    ” 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. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable...

  • NAVY | DRB | 2012_Navy | ND1200921

    Original file (ND1200921.rtf) Auto-classification: Denied

    The Applicant provided no additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service and medical record.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. Relief denied.Summary: After a thorough review of the...

  • NAVY | DRB | 2007_Navy | ND0700541

    Original file (ND0700541.rtf) Auto-classification: Denied

    The Applicant’s summary of service clearly documents the Applicants misconduct resulting in a civilian conviction and four nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence, four specifications), 92 (failure to obey), 107 (false official statement, two specifications) and 128 (assault). The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of...

  • NAVY | DRB | 2014_Navy | ND1400367

    Original file (ND1400367.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.

  • NAVY | DRB | 2014_Navy | ND1400330

    Original file (ND1400330.rtf) Auto-classification: Denied

    ” 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. Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage...