Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1301361
Original file (ND1301361.rtf) Auto-classification: Denied

ex-ASAA, USN
Current Discharge and Applicant’s Request
Application Received: 20130611
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)        20031031 - 20040718     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200 4 0719     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080418      Highest Rank/Rate: ASAN
Length of Service: Y ear( s ) M onth( s ) 00 D a y ( s )
 Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.72

Awards and Decorations ( per DD 214):     

Periods of C ONF :

Periods of UA: 20061029 - 20061101, 3 days; 20061214 - 20061218, 4 days; 20070618 - 20070915, 89 days; 20071220 - 20080107, 18 days; 20080114 - 20080331, 77 days

NJP :

- 20060920 :      Article (Absence without leave, 2 specifications)
         Specification 1: Unauthorized absence on or about 20060814 - 20060905 , 21 days
         Specification 2: Unauthorized absence on or about 20060915 - 20060918 , 3 days
         Article (Missing movement, on or about 20060814)
         Awarded: Suspended:

S CM :

- 20071029 :      Article (Absence without leave , 20070618-20070915, 89 days )
         Sentence:

SPCM:    C C :

Retention Warning Counseling :

- 20060920 :       For Article 86 (Absence without leave; absence from unit, organization or place of duty on or about 20060814 until on or about 20060905 and on or about 20060915 until on or about 20060918) and Article 87 (Missing movement; on or about 20060814)





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 11, effective 31 May 2005 until Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C . 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 seeks a change in his RE-code t o reenlist into the Armed Forces.
 2.       The Applicant contends youth and immaturity were contributing factors in his misconduct .
 3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 4 0130             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 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 an d propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Mi litary Justice (UCMJ): Article 86 ( Absence without leave , 2 specific ation s) and Article 87 ( Missing movement , 1 specific ation ) , and for of the UCMJ: Article 86 ( Absence without leave , 1 specific ation) . Based on additional misconduct committed by the Applicant, his command referred charges to a Special Court-Martial. T o avoid a punitive discharge (i.e., Bad Conduct), the Applicant request ed separation in lieu of trial by court-martial (SILT) . To request a SILT, the Applicant would have note d that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He would have certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. The Navy accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Nondecisional) The Applicant seeks a change in his RE-code to reenlist into the Armed Forces. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends youth and immaturity were contributing factors in his misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.
Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293 and some phone numbers for employers, he failed to provide any documentary

evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 | 2009_Marine | MD0901415

    Original file (MD0901415.rtf) Auto-classification: Denied

    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.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 | 2007_Navy | ND0700604

    Original file (ND0700604.rtf) Auto-classification: Denied

    The Applicant’s service was marred by the award of two nonjudicial punishments (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (Dereliction of Duty), Article 92 (Failure to obey order or regulation) and Article 113 (Misbehavior of sentinel or lookout). ” 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....

  • USMC | DRB | 2010_Marine | MD1001784

    Original file (MD1001784.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 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. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • USMC | DRB | 2007_Marine | MD0701083

    Original file (MD0701083.rtf) Auto-classification: Denied

    20060803 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (20060905) SJA review (date): (20060920) Separation Authority (date): CG, 1 ST MARINE DIVISION (20060928) Basis for discharge directed: DUE TO Characterization directed: Date Applicant Discharged: 20061003 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service: Service and/or...

  • USMC | DRB | 2015_Marine | MD1500347

    Original file (MD1500347.rtf) Auto-classification: Denied

    Based on the Applicant’s medical condition, command administratively processed for separation. 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...

  • USMC | DRB | 2012_Marine | MD1200790

    Original file (MD1200790.rtf) Auto-classification: Denied

    Based on the Applicant’s record of service during the period under review, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and that the characterization of service received was warranted.As the Applicant requested a review of his discharge in order to facilitate access to VA benefit programs for help with PTSD issues, the NDRB conducted a...

  • USMC | DRB | 2010_Marine | MD1002035

    Original file (MD1002035.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/ToCongress member: Pertinent Regulation/Law A. This issue does not serve to...

  • NAVY | DRB | 2012_Navy | ND1200897

    Original file (ND1200897.rtf) Auto-classification: Denied

    The Applicant’s record reflects that he was notified on 16 May 2011 of administrative separation processing for Misconduct (Commission of a Serious Offense) and that the least favorable characterization of service possible was Under Other Than Honorable Conditions. The CO, as promised, recommended a General discharge, but the Separation Authority reviewed the record of service and misconduct and ordered an Under Other Than Honorable Conditions discharge. ” Additional Reviews : After a...

  • NAVY | DRB | 2008_Navy | ND0801407

    Original file (ND0801407.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive: USN(US Naval Academy)Start date NFIR - 20040527Active: Period of Service Under Review: Date of Appointment:20040528 Years Contracted: Years Months Date of Discharge: 20070131Length of Service: Years Months04 Days Education Level: Age at Enlistment:Highest Rank: Officer’s Fitness reports:the Board for review.Awards and Decorations (per DD 214):NONE Discharge Process...

  • USMC | DRB | 2011_Marine | MD1101971

    Original file (MD1101971.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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...