Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1401121
Original file (ND1401121.rtf) Auto-classification: Denied

ex-EM1, USN
Current Discharge and Applicant’s Request
Application Received: 20140528
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       INSUFFICIENT RETAINABILITY (ECONOMIC REASONS)

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19950731 - 19951227     Active:   19951228 – 20071115 Hon

Period of Service Under Review:
Date of Current Enlistment: 20071116     Age at Enlistment: 34
Period of E nlistment : Years Extension
Date of Discharge: 20131115      Highest Rank/Rate: EM1
Length of Service: 17 Y ear( s ) M onth( s ) 18 D a y ( s )
 Education Level:        AFQT: 95
Evaluation M arks:         Performance: 3.6 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.38

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 19970515 :      Article (General Article) Disorderly conduct, Drunkenness
         Awarded: Suspended:
S CM :

SPCM:

C C :

Retention Warning Counseling : 4

- 19970515 :       For violation of Article 134, NJP 19970515

- 20021011 :       For failure to meet physical standards (body fat 24%)
- 20090801 :       For failure to meet physical standards (body fat 31%)

-20130619: For failure to meet physical standards (body fat 34%) 3 rd failure within enlistment; recommendation for separation from the Navy








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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 .


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

Applicant’s Issues

 1.       The Applicant is unable to receive separation pay due to voluntary separation.
2.       The Applicant contends that his discharge was involuntary, and wants a separation code that acknowledges this.

Decision

Date: 20 1 4                      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 the Applicant’s 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) warnings for failure to meet physical standards , and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 134 ( General Article , Drunk and Disorderly). Based on the offense(s) committed by the Applicant, command notified him of administrative separation processing . However the command appears to have allowed the Applicant to complete his enlistm ent and leave the Navy at the end of his required service .

: (Nondecisional) The Applicant is unable to receive separation pay due to voluntary separation. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to separation pay. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends that his discharge was involuntary, and wants a separation code that acknowledges this. Based on the NAVPERS notification that the command intended to separate you based on three failures of the Physical Assessment, and a body fat percentage of 34, the board determined that the command allowed you to finish the last several months of your enlistment out of leniency. You were able to complete your required obligated service, and leave the Navy with an honorable discharge, as opposed to leaving the Na vy with a General discharge and a narrative reason of Physical Standards or failure to perform . Based on the discharge code of KBK, you had to have voluntarily left the service. Otherwise, there would have had to have been a board to discharge you with this code. The Board assumes regularity in government affairs unless the Applicant provides conclusive evidence to refute that assumption. No evidence was provided by the Applicant to show that the government discharged the Applicant against his wishes. 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 | MD0901360

    Original file (MD0901360.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 20030924 - 20040426 Active: Period of Service Under Review: Date of Enlistment: 20040427Age at Enlistment: Period of Enlistment: Years Months Date of Discharge: 20060921 Highest Rank: Length of Service: Year(s) Month(s)26 Day(s)Education Level: AFQT: 34 MOS: 0161 Proficiency/Conduct Marks (# of occasions): () / () Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2014_Marine | MD1401157

    Original file (MD1401157.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on the Applicant’s unsatisfactory performance on BCP, 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 | 2006_Navy | ND0600639

    Original file (ND0600639.rtf) Auto-classification: Denied

    ” PART I - ISSUES AND DOCUMENTATION Decisional Issues Propriety: Not advised of rights or offered counsel Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19880930 - 19890125 COG Active: USN 19890126 - 19920715 HON Period of Service Under Review :Date...

  • USMC | DRB | 2009_Marine | MD0900288

    Original file (MD0900288.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall WEIGHT CONTROL FAILURE.Discussion :().The Applicant contends after 12 plus years of decorated and faithful service, he believes his discharge, due to weight control, does not rate a “General (Under Honorable Conditions)” and his misconduct was due to mitigating circumstances (family issues). The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length...

  • USMC | DRB | 2006_Marine | MD0601026

    Original file (MD0601026.rtf) Auto-classification: Denied

    ex-PFC, USMCMD06-01026Current Discharge and Applicant’s Request: Application Received: 20060731Narrative Reason for Separation: Character of Service:Discharge Authority: MARCORSEPMAN PARA 6206.5Last Duty Assignment/Command at Discharge: 2DAABN 2DMARDIV CAMLEJ NC 28542Applicant’s Request:Narrative Reason change to: NONE REQUESTEDCharacterization change to:Review Requested:Representation: NONE Decision: Date of Decision:20070607 The Discharge shall : GENERAL (UNDER HONORABLE...

  • USMC | DRB | 2009_Marine | MD0902230

    Original file (MD0902230.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 | 2009_Marine | MD0901895

    Original file (MD0901895.rtf) Auto-classification: Denied

    The NDRB determined the Applicant was not separated for medical reasons but for failure to meet assigned weight and body fat standards.The Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 to 31 August 2001, however, does allow for an Honorable discharge for servicemembers separated for unsatisfactory performance (paragraph 6206).After a review of the Applicant’s service record, the NDRB did find that his service met the standard for honorable conduct. ...

  • USMC | DRB | 2013_Marine | MD1300907

    Original file (MD1300907.rtf) Auto-classification: Denied

    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 and propriety.The Applicant’s record of service included 6105 counseling warnings.Based on the Applicant’s lack of progress in the Body Composition Program, command administratively processed for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal...

  • USMC | DRB | 2013_Marine | MD1301692

    Original file (MD1301692.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...

  • USMC | DRB | 2009_Marine | MD0900290

    Original file (MD0900290.rtf) Auto-classification: Denied

    However, by unanimous vote, the narrative reason for the discharge, “Condition not a disability” shall remain as issued. ” 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. 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.