Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1301117
Original file (ND1301117.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20130430
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       PARENTHOOD
        
Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20091207 - 20100404     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20100405     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120622      Highest Rank/Rate: MMFN
Length of Service: Y ear s M onth s 18 D a ys
Education Level:        AFQT: 59
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.17

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

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: “ NATIONAL DEFENSE SERVICE MEDAL, ENLISTED SURFACE WARFARE SPECIALIST ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 :        




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

Applicant’s Issues

 1.       The Applicant seeks an upgrade to qualify for education benefits.
2.       The Applicant contends s he did not commit, nor was she notified of, any offense that warrant ed separation pursuant to Naval Military Personnel Manual (MILPERSMAN) Article 1910-142 (Commission of a Serious Offense).
3 .       The Applicant requests that her Narrative Reason for Separation be changed to Parenthood, her Separation Code to FDG, and her Reentry Code to RE-3B.

Decision

Date : 20 1 4 0109             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. 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 standards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, pursuant to MILPER S MAN Article 1910-142, her command processed her for administrative separation based on commission of a serious offense. When notified of administrative separation processing using the procedure, the Applicant elected rights to co nsult with a qualified counsel and submit a written statement but waived her right to request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant seeks an upgrade to qualify for education 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 r echaracterization 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. T he 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.
: (Decisional) ( ) . The Applicant contends s he did not commit, nor was she notified of, any offense that warrant ed separation pursuant to MILPERSMAN Article 1910-142 (Commission of a Serious Offense). In accordance with MILPERSMAN Article 1910-142 , servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction , however, the offense must be substantiated by a preponderance of evidence. The Applicant’s commanding officer determined she violated Uniform Code of Military Justice (UCMJ) Article 107 (False official statement) based upon a letter from the Chief Judge of the Suffolk Juvenile and Domestic Relations Court, dated 4 May 2012, that revealed the Applicant lied about child custody issues. Per Appendix 12 of the Manual for Courts-Martial, violation of UCMJ Article 107 is considered a serious offense that could have resulted in a Dishonorable or Bad Conduct Discharge, confinement for up to 5 years, and forfeiture of pay if found guilty at a General or Special Court-Martial. Her command, however, determined not to refer charges to a court-martial but to instead process the Applicant for administrative separation. Because the Applicant was not charged with a crime in legal proceedings, her Constitutional rights were not violated. Since her CO determined she violated Article 107, she was notified of administrative separation processing for Commission of a Serious Offense using the Notification Procedure (NAVPERS 1910/32) since she served less than six years and was only being recommended for a General discharge. She did not warrant an administrative separation board as she served less than six years and was not recommended for an Under Other Than Honorable Conditions discharge. The Applicant elected her rights, in writing on 24

May 2012, to consult with a qualified counsel and to submit a written statement to the Separation Authority. After a complete review of the records, the NDRB determined she received all applicable rights pursuant to the administrative discharge process, her Constitutional rights were not violated because she did not face legal proceedings, and her discharge was warranted, proper, and equitable. Relief denied.

 : (Decisional) ( ) . The Applicant requests that her Narrative Reason for Separation be changed to Parenthood, her Separation Code to FDG, and her Reentry Code to RE-3B. 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 her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was improperly separated based on commission of a serious offense. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity with the discharge, and no other narrative reason for separation more clearly describes why the Applicant was discharged. 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.

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 107 (False official statement) .


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 | 2012_Navy | ND1200573

    Original file (ND1200573.rtf) Auto-classification: Denied

    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 Representation: From/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2013_Navy | ND1301339

    Original file (ND1301339.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 | 2013_Navy | ND1300710

    Original file (ND1300710.rtf) Auto-classification: Denied

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

  • NAVY | DRB | 2007_Navy | ND0700468

    Original file (ND0700468.rtf) Auto-classification: Denied

    Despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. ” 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 date of discharge. Board Membership: The names and votes of the members of the Board are recorded on the original of this document and...

  • NAVY | DRB | 2006_Navy | ND0600915

    Original file (ND0600915.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Decisional Issues Equity – Post service Documentation In addition to the service and medical records the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Service 2)Early Childhood Education Enrollment Letter from G_ G_, dtd June 13, 2006 Early Childhood Education Enrollment Letter from J_ B_ G_, dtd June 13, 2006...

  • NAVY | DRB | 2004_Navy | ND04-00955

    Original file (ND04-00955.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. “My discharge was inequitable because it was based one isolated incident in 26 months of separation with no other adverse action due to this issue the narrative reason for separation was misconduct. My separation should have been based on my non-compliance and or disability.

  • NAVY | DRB | 2001_Navy | ND01-00918

    Original file (ND01-00918.rtf) Auto-classification: Denied

    ND01-00918 Applicant’s Request The application for discharge review, received 010709, requested that the characterization of service on the discharge be changed to honorable or entry level separation or uncharacterized and the reason for the discharge be changed to Parenthood. 000720: Applicant charged with violation of UCMJ, Article 86: Unauthorized absence from 0730, 19Jun00 to 0730, 28Jun00 and violation of UCMJ, Article 134: Wrongfully and falsely alter a leave request/authorization...

  • NAVY | DRB | 2011_Navy | ND1101608

    Original file (ND1101608.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade for employment opportunities. The Applicant was processed for administrative separation due to Misconduct (Commission of a Serious Offense) as the result of an NJP where she was found guilty of violating UCMJ Article 121 (Larceny and wrongful appropriation) and Article 107 (False official statements). ” Additional Reviews : After a document...

  • NAVY | DRB | 2005_Navy | ND0500768

    Original file (ND0500768.rtf) Auto-classification: Denied

    Issues The Applicant’s American Legion Representative submitted the following three equity issues on the date of the hearing. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20020813 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the...

  • NAVY | DRB | 2006_Navy | ND0600729

    Original file (ND0600729.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20040218 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). The names, and votes of the members of the Board are recorded on the original of this document and may be...