Search Decisions

Decision Text

NAVY | DRB | 2015_Navy | ND1500495
Original file (ND1500495.rtf) Auto-classification: Denied

ex-ICFR, USN

Current Discharge and Applicant’s Request
Application Received: 20151125     
Characterization of Service Received:
Narrative Reason for Discharge:
Reenlistment Code:
Authority for Discharge: MILPERSMAN

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

Prior Service:
 Inactive:        USNR (DEP)       19960628 - 19961106     Active: 

Period of Service Under Review:
Date of Current Enlistment: 19961107     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20040824      Highest Rank/Rate: E4/IC3
Length of Service: Year(s) Month(s) 11 Day(s)
Education Level:         AFQT: 75
Evaluation Marks:        Performance: NFIR Behavior: NFIR OTA: NFIR      

Awards and Decorations (per DD 214):     NONE

Periods of Time Lost: 20001028-20001030 (2 Days); 20001122-20010203 (73 Days)/CONF:

NJP: SCM:

SPCM:

- 20010109:      Article
         Article
Article 112a (Wrongful use, possession, etc., of controlled substances, 3 Specifications)
         Sentence: CONF 90 days BCD

CIVIL ARREST: CC:

Retention Warning Counseling:


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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, 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)(a), Presumption Concerning Court-Martial Specifications.




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

Applicant’s Issues

1. The Applicant contends he needs an upgrade to further his career.    
2. The Applicant contends he has suffered enough and wants an upgrade.

Decision

Date: 20150625            Location: Washington D.C.        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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article 107 (False official statements), and Article 112a (Wrongful use, possession, etc., of controlled substances, 3 Specifications). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 5 and 9 January 2001. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, reduction to (E-1), forfeiture of pay, and confinement for 90 days. The Convening Authority approved the sentence as adjudged. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals; it was reviewed and that no error materially prejudicial to the substantial rights of the appellant was committed. The findings were affirmed on 21 January 2003.

: (Nondecisional) The Applicant contends he needs an upgrade to further his career. 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.

: (Decisional) () . The Applicant contends he has suffered enough and wants an upgrade. 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. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions and the awarded characterization of service was warranted. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Clemency 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 BAD CONDUCT and the narrative reason for separation shall remain COURT-MARTIAL. 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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 | 2013_Navy | ND1300709

    Original file (ND1300709.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. ” Additional Reviews : After a document review has been conducted, former members...

  • NAVY | DRB | 2010_Navy | ND1000677

    Original file (ND1000677.rtf) Auto-classification: Denied

    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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.

  • NAVY | DRB | 2009_Navy | ND0902623

    Original file (ND0902623.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks an upgrade to reenlist in the military.2. When notified of administrative separation processing using the procedure, the Applicant had an opportunity to defend himself, but 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. ” Additional Reviews...

  • NAVY | DRB | 2014_Navy | ND1400102

    Original file (ND1400102.rtf) Auto-classification: Denied

    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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2010_Navy | ND1000531

    Original file (ND1000531.rtf) Auto-classification: Denied

    A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and administrative discharge process, the Board found Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE.The Applicant...

  • NAVY | DRB | 2009_Navy | ND0901934

    Original file (ND0901934.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant believes his post-service conduct is worthy of clemency. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. ” Additional Reviews : After a document review has been conducted, former...

  • NAVY | DRB | 2010_Navy | ND1000533

    Original file (ND1000533.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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. ...

  • NAVY | DRB | 2010_Navy | ND1001233

    Original file (ND1001233.rtf) Auto-classification: Denied

    The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. ” 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.

  • NAVY | DRB | 2014_Navy | ND1400105

    Original file (ND1400105.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 | 2011_Navy | ND1100145

    Original file (ND1100145.rtf) Auto-classification: Denied

    Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter),the Board completed a thorough review of the available records to determine whether discharge and the discharge process met the pertinent standards of equity and propriety. A request for a waiver can be...