Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300726
Original file (ND1300726.rtf) Auto-classification: Denied

ex-EMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20130208
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)        20080708 - 20090714     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090715     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120927      Highest Rank/Rate: EM3
Length of Service: Y ear( s ) M onth( s ) 13 D a y ( s )
 Education Level:        AFQT: 74
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.00

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20110506 :      Article (Failure to obey order or regulation , 2 specifications )
         Article (False official statement)
         Awarded: Suspended:

- 20120730 :      Article (Failure to obey order or regulation, wrongfully using “S pice ”)
         Awarded : RIR Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20110506 :       Date extracted from Commanding Officer’s letter dated 20120913

Administrative Corrections to the Applicant’s DD 214

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

          “ EM F N ”
         “ E3 ”
        
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 36, effective 18 August 2011 until Present, 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 there was no legal justification behind his discharge and improper procedures were followed.
2 .       The Applicant contends he was coerced into making a statement.
 3 .       The Applicant contends there was a lack of evidence at his N onjudicial Punishment (N JP ) .
 4 .       The Applicant contends he is innocent.
 5 .       The Applicant contends his post-service conduct warrants an upgrade.
Decision

Date : 20131030             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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation , 3 specifications ) and Article 107 (False official statement) . The Applicant did not have a pre-service drug waiver for using illicit drugs prior to entering the Navy. Based on the drug policy violation, processing for administrative separation is mandatory. When notified of administrative separation processing for a Pattern of Misconduct and Misconduct (Serious Offense) using the procedure on 07 September 2012 , the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, the C ommanding Officer , Transient Personnel Unit, Norfolk letter of 13 September 2012 and the Applicant’s separation code of HKQ on his DD Form 214 indicate he waived his right to appear before an administrative board.

: (Decisional) ( ) . The Applicant contends there was no legal justification behind his discharge and improper procedures were followed . The record clearly shows the Applicant was found guilty at two NJPs for violating UCMJ Article 92 (Failure to obey order or regulation , 3 specifications ) and Article 107 (False official statement) . Violation of Articles 92 and 107 are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge as the result of a Special or General Court-Martial or administrative separation processing. His command chose to leniently separate him administratively. The Applicant provided a personal statement and drug testing documents to support his contention that improper procedures were followed. The NDRB presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption . The evidence provided by the Applicant does not refute the presumption of regularity in this case. T he NDRB determined all procedures were properly followed and discerned no impropriety or inequity in the Applicant’s separation for misconduct . Relief denied .

: (Decisional) ( ) . The Applicant contends he was coerced into making a statement. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends there was a lack of evidence at his NJP. The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible , and the Applicant’s contention that his NJP was based on a lack of evidence has no merit. His CO only needed to have a preponderance of evidence that he committed the misconduct to find him guilty at NJP. The Applicant has not presented any documentation to prove his CO disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he is innocent. Although the Applicant initially exercised right to request an administrative board , his record and DD Form 214 separation code indicate he subsequently waived his right to appear before an administrative board . 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. During an administrative separation board, he would have had the opportunity to mount a defense against the charges. The evidence provided by the Applicant does not refute the presumption of regularity in this case . Relief denied.

5 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants an upgrade. 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. The Applicant provided a personal statem ent, evidence of college enrollment , and three character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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 Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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

  • USMC | DRB | 2015_Marine | MD1500311

    Original file (MD1500311.rtf) Auto-classification: Denied

    As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB. Regarding the July 2013 Article 92 (Failure to obey order or regulation) NJP charges for plagiarism, the Applicant stated that he had not correctly attributed the original author in both his letter to the...

  • NAVY | DRB | 2011_Navy | ND1101375

    Original file (ND1101375.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and non-judicial punishments for of the Uniform Code of Military Justice (UCMJ): 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...

  • USMC | DRB | 2013_Marine | MD1301265

    Original file (MD1301265.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. 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. Additionally, the NDRB has no authority to upgrade a...

  • NAVY | DRB | 2014_Navy | ND1400922

    Original file (ND1400922.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants to reenlist.2. Representation: 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...

  • USMC | DRB | 2014_Marine | MD1400370

    Original file (MD1400370.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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2013_Marine | MD1300643

    Original file (MD1300643.rtf) Auto-classification: Denied

    of controlled substances, THC 21ng/ml)Sentence: (20110506-20110529, 24 days) 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...

  • USMC | DRB | 2012_Marine | MD1201356

    Original file (MD1201356.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. While his command could have referred charges to a Special Court-Martial that could have resulted in a punitive discharge (i.e., Bad Conduct), his command chose the lenient option of administratively discharging him.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...

  • NAVY | DRB | 2011_Navy | ND1100345

    Original file (ND1100345.rtf) Auto-classification: Denied

    Based on the offenses committed by the Applicant, his command administratively processed him for separation. The decision to administratively separate a servicemember is made independently of the imposition of NJP per regulation and is a separate and distinct process from NJP. ” 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...

  • USMC | DRB | 2015_Marine | MD1401488

    Original file (MD1401488.rtf) Auto-classification: 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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...

  • NAVY | DRB | 2008_Navy | ND0801872

    Original file (ND0801872.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 Entries, Discharge Process and evidence submitted by the Applicant, the Board 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...