Upgrade.Vet

NAVY | DRB | 2015_Navy | ND1501163

Original file (ND1501163.rtf) Auto-classification: Denied

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20150529

Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS

Narrative Reason for Discharge: (per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Reenlistment Code: RE-4
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:     Characterization change to:      GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to:      NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20070706 - 20080626 COG         Active: NONE

Period of Service Under Review:

Date of Current Enlistment: 20080627    Age at Enlistment: 18
Period of Enlistment: 4 Years 12 MONTHS Extension
Date of Discharge: 20110722     Highest Rank/Rate: HN
Length of Service: 03 Year(s) 00 Month(s) 26 Day(s)
Education Level: 12     AFQT: 62
Evaluation Marks:        Performance: 3.33 (3)    Behavior: 2.67 (3)      OTA: 2.94

Awards and Decorations (per DD 214):     NDSM GWOTSM

Periods of UA: NONE

NJP: NONE

SCM: 1

- 20110614:      Article 128 (Assault) 2 Specifications
         Specification 1: NFIR
         Specification 2: NFIR
         Article 134 (General article) [wrongfully communicate a threat] 2 Specifications
         Specification 1: NFIR
         Specification 2: NFIR
         Sentence: CONF 30 days (43 days pretrial confinement applied to ordered confinement 20110420 – 20110602) FOP RIR E-1
         CA: Approved sentence 20110622 [extracted from Court Memorandum]

SPCM: NONE

CC: NONE

Retention Warning Counseling: NONE

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), Change 29, effective 10 November 2009 until 17 August 2011, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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 128, assault and Article 134, general article.

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

Applicant’s Issues

1. The Applicant states his discharge was proper and inequitable and provides that he was young and stupid at the time but would now like to enlist in the Marine Corps.

Decision

Date: 20150820 DOCUMENTARY REVIEW Location: Washington D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (SERIOUS OFFENSE) .

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. The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service one summary court-martial (SCM) for violations of the UCMJ: Article 128 (Assault) and Article 134 (General article). Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant states his discharge was proper and inequitable and provides that he was young and stupid at the time but would now like to enlist in the Marine Corps. The Applicant submits his educational accomplishment of earning an Associates of Arts degree as post-service mitigation. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects significant willful misconduct and demonstrated he was unfit for further service. The Applicant suggests that his post-service achievements warrant 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.

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. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE) . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 | 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 | ND0902621

Original file (ND0902621.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 | 2008_Navy | ND0801592

Original file (ND0801592.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, 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 accordance with...
NAVY | DRB | 2011_Navy | ND1100764

Original file (ND1100764.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 does not have the authority to...
NAVY | DRB | 2009_Navy | ND0902521

Original file (ND0902521.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 | 2011_Navy | ND1100530

Original file (ND1100530.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 .Since 15 years have...
NAVY | DRB | 2009_Navy | ND0900369

Original file (ND0900369.rtf) Auto-classification: Denied

The NDRB determined an upgrade founded upon the Applicant’s post-service conduct would be inappropriate.The Applicant remains eligible for a personal appearance hearing andis directed to the Addendum, specifically the paragraphs concerning Additional Reviews and Automatic Upgrades .Should the Applicant feel at some later time his post-service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance...
NAVY | DRB | 2008_Navy | ND0801865

Original file (ND0801865.rtf) Auto-classification: Denied

For the edification of the Applicant, with respect to non-service-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an “Uncharacterized ” separation is considered the equivalent of an “Honorable ” or “General (Under Honorable Conditions) ” discharge.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board...
NAVY | DRB | 2010_Navy | ND1001030

Original file (ND1001030.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 . ” Additional Reviews : After a document review has been conducted, former members are eligible for a...
USMC | DRB | 2011_Marine | MD1100304

Original file (MD1100304.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 .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...

Search Decisions

Decision Text

NAVY | DRB | 2015_Navy | ND1501163

Similar Decisions