Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300962
Original file (ND1300962.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20130327
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)        20080507 - 20081027     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081028     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110902      Highest Rank/Rate: CS3
Length of Service: Y ear( s ) M onth( s ) 6 D a y ( s )
 Education Level:        AFQT: 42
Evaluation M arks:         Performance: 2.67 ( 3 )     Behavior: 2.00 ( 3 )       OTA: 2.44

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20 110706 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ 2008 10 28 ”
“ ”

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 92 .


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

Applicant’s Issues

 1.        The Applicant contends his discharge wa s based on an improper finding of guilt at Nonjudicial Punishment (NJP) for violating Uniform Code of Military Justice (UCMJ) Article 92.

Decision

Date : 20 1 3 1106             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. T he 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 NJP for o f the UCMJ: Article 86 ( Absence without leave ) and Article 92 ( Failure to obey order or regulation). Based on the offenses committed by the Applicant, command administratively processed for separation. 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 an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his discharge was based on an improper finding of guilt at NJP for violating UCMJ Article 92. The Applicant argues that he was improperly charged for violations of Article 86 and Article 92, when the two violations stemmed from the same transaction. The Applicant states that he was absent without leave from his unit for five days , therefore, he was in violation of Article 86 , which is not considered a serious offense . However, he contends he was improperly also charged with violation of Article 92 for violating an order or regulation , to wit , not being at his appointed place of duty. The Applicant’s record does not include the specifications for the a rticles that he was found guilty of at NJP. Therefore, the NDRB was not able to determine specifically what order or regulation he failed to obey. A c ommander has certain discretion in application of the UCMJ to preserve good order and discipline within his unit. The facts of the record are that the Applicant was found guilty of both Article 86 and Article 92 at NJP. His unit then processed him for administrative separation on the basis that he had committed a serious offense in violation of Article 92. The preponderance of the evidence supports that the Applicant committed a serious offense and that his discharge was proper and equitable. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command acted improperly by charging him with violation of Article 92. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 | 2008_Navy | ND0801796

    Original file (ND0801796.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and medical records, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain COMMISSION OF A SERIOUS OFFENSE. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the...

  • USMC | DRB | 2010_Marine | MD1000544

    Original file (MD1000544.rtf) Auto-classification: Denied

    The Applicant contends his rights were violated, because his command’s decision to conduct NJP proceedings based solely on allegations [instead of facts]did not afford him the opportunity to consult with counsel and properly prepare a defense. He also alleges the command’s Sergeant Major advised him not to file an appeal to the NJP conducted on 20 March 2009, further contending his rights were violated and that the command acted improperly.The NDRB found evidence in the Applicant’s service...

  • USMC | DRB | 2015_Marine | MD1500997

    Original file (MD1500997.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 . ” 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...

  • NAVY | DRB | 2009_Navy | ND0900153

    Original file (ND0900153.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant has requested an upgrade in her discharge characterization to “Honorable”. 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.

  • USMC | DRB | 2009_Marine | MD0902481

    Original file (MD0902481.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement, orto request a hearing before an administrative discharge board.The NDRB had a copy of the Applicant’s administrative separation package as well as the Applicant’s acknowledgement of rights in response to the pending administrative separation.The Applicant provided no documentation to rebut the government’s presumption of...

  • NAVY | DRB | 2011_Navy | ND1101798

    Original file (ND1101798.rtf) Auto-classification: Denied

    The NDRB determined that the Narrative Reason for Separation should change to MISCONDUCT to reflect that she was discharged for Commission of a Serious Offense.Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • USMC | DRB | 2014_Marine | MD1400616

    Original file (MD1400616.rtf) Auto-classification: Denied

    During the Applicant’s 3 years and 7 months of service, he was found guilty of violating multiple serious UCMJ articles at four NJPs, received five retention warnings, and met the requirements to be administratively separated for a Pattern of Misconduct, Commission of a Serious Offense, and Drug Abuse. ” 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...

  • NAVY | DRB | 2008_Navy | ND0801220

    Original file (ND0801220.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and 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 document requirements of DoD Instruction 1332.28, you may submit a complaint in...

  • NAVY | DRB | 2014_Navy | ND1400925

    Original file (ND1400925.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his court-martial convictionfor drug abuse was overturned and charges dismissed, and his command then improperly discharged him for commission of a serious offense.2. 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 | 2007_Navy | ND0701097

    Original file (ND0701097.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP) 19980818 - 19981108 Period of Service Under Review: Date of Enlistment: 19981109Years Contracted:4; Extension: 22 monthsDate of Discharge:20040607Length of Service:05 Yrs 06 Mths29 DysLost Time:Education Level: Age at...