ex-AC2, USN

Current Discharge and Applicant’s Request

Application Received: 20150203
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)	19980527 - 19980803  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  19980804	Age at Enlistment:  
Period of Enlistment:   Years  44 MONTHS Extension
Date of Discharge:  20060324	Highest Rank/Rate:  AC2 (FROCKED)
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  70
Evaluation Marks:	Performance:  3.29 (7)	Behavior:  3.0 (7)	OTA:  3.26

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  

- 20000225:	Article 
	Awarded:    Suspended:  

SCM:  

SPCM:  

CIVIL ARREST:  

- 20051229:	Charges:  Passing fake travelers checks and presenting false identification

CC:  

- 20060109:	Offense:  3 counts of fraud under $5,000
	Sentence:  Time served, 12 month probation, $5,000 fine

Retention Warning Counseling:  

- 20000225:	For VUCMJ, Article 86 Unauthorized Absence

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:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

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

Applicant’s Issues

1.	The Applicant contends that his DD-214 incorrectly lists his narrative reason for discharge as a pattern of misconduct when he did not have a pattern of misconduct.
2.	The Applicant contends that he was basically a 5.0 sailor and that each of his evals showed that he was improving as a sailor.
3.	The Applicant contends that his criminal record in Canada has been expunged and that he hopes his country will do the same.
4.	The Applicant contends that his post service employment and conduct warrants consideration for an upgrade.

Decision

Date:  20150325		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.  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  NAVPERS 1070/613 (Page 13) warning;   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification); and  civil conviction from the Province of Ontario, Canada for three counts of fraud under $5,000.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Decisional) ()  .  The Applicant contends that his DD-214 incorrectly lists his narrative reason for discharge as a pattern of misconduct when he did not have a pattern of misconduct.  The Applicant’s record of service consists of one four year enlistment with a total of 44 months of extension to that single enlistment as opposed to completing his first enlistment and re-enlisting and starting a new and separate enlistment period.  Servicemembers may be separated when during their current enlistment they accrue two or more nonjudicial punishments (NJP), court-martial, or civil convictions (or combination thereof).  Applicable references also include the requirement that a servicemember must have violated a NAVPERS 1070/613 (Page 13) warning prior to processing.  The Applicant’s record of service clearly indicates he received both a 24 February 2000 NJP and Page 13 warning for his Article 86 violation combined with his subsequent 9 January 2006 civil conviction in the province of Ontario, Canada for three counts of fraud under $5,000.  The NDRB found that this misconduct met the requirements for a pattern of misconduct discharge, that the Applicant was properly notified of the reason for his separation, and that the Applicant waived his rights to an administrative board thereby accepting the characterization and narrative reason for discharge.  Therefore, the NDRB found the Applicant’s issue to be without merit.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that he was basically a 5.0 sailor and that each of his evals showed that he was improving as a sailor.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  The NDRB was only able to review the Applicant’s last two evaluations from the record; however, the Applicant provided copies of what he contends were all seven of his evaluations in-service evaluations.  

The NDRB reviewed the Applications and noted significant discrepancies between the Separation’s Evaluation the Applicant provided and the Separation’s Evaluation in the record.  The Separation Evaluation submitted by the Applicant omitted all reference to the Applicant’s Canadian criminal misconduct and had a significantly different block 43, comments on performance section.  Additionally, the version provided by the Applicant had a recommendation for retention instead of the recommendation against retention contained on the evaluation in the record; listed his promotion recommendation as an “Early Promote” instead of “Significant Problems” as contained within his official record copy; and had significantly higher markings for quality of work (rated as a “5” on his copy and a “3” in the record), military bearing/character (rated as a “5” on his copy and a “1” in the record), personal job accomplishment was not readable on the copy the Applicant provided, teamwork (rated as a “5” on his copy and a “3” in the record), leadership (rated as a “4” on his copy and a “3” in the record), and had an overall trait average of 4.43 on his copy verses a 2.71 on the copy of record.  The NDRB also noted that the final evaluation provided by the Applicant lacked the signatures of his reporting officials.  The NDRB did not use the Applicant’s version of his final evaluation in the calculations for his evaluation summary in the administrative section of this decisional document.  

Using all of the evaluations submitted by the Applicant, minus his Separation Evaluation, and the evaluations contained within his official record the Applicant’s overall trait average was 3.26.  Had only the evaluations contained within the record been considered, the Applicant’s overall trait average would have been reviewed as a 3.36.  In either case, these trait averages indicate an overall average level of performance during his enlistment, as reinforced by promotion recommendations on his evaluations consisting of three “promotable”, three “must promote”, and one “significant problems”.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that his criminal record in Canada has been expunged and that he hopes his country will do the same.  Having charges dismissed after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.  Documentation submitted by the Applicant from the Canadian Ministry of Community Safety and Correctional Services with respect to this issue states “A review of [the Applicant’s] file indicated that he had been on Probation from June 9, 2006 to June 8, 2007.  He had received a Conditional Discharge.  A conditional discharge means that there had been a finding of guilt but no conviction.  As a result, [the Applicant] does not have a conviction for the offense for which he was on Probation.”  

In reviewing cases, the NDRB is not bound by decisions of either foreign or domestic civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge.  However, such information can be and was considered by the NDRB in making a determination as to the equity of the characterization of service.  The commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings, or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  The Applicant was notified of separation due to both a pattern of misconduct and the commission of a serious offense as evidenced by his 24 February 2000 NJP and Page 13 warning for his Article 86 violation combined with his subsequent 9 January 2006 civil conviction in the province of Ontario, Canada for three counts of fraud under $5,000.  Also within the record is the eight page handwritten letter in which the Applicant details the events leading up to, during, and after his arrest; his personal actions, thoughts, and justifications; and details his legal work and decision making process in ensuring he was properly educated before making his plea deal with the Canadian court system.  The evidence of record reflects the Applicant knowingly engaged in criminal behavior while traveling abroad, thereby reflecting negatively on the Navy and himself.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends that his post service employment and conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement; a promotion evaluation from service with Military Sealift Command (MSC); a MSC letter documenting his sea time service; a post-service search and rescue training certificate; a copy of his merchant mariner credential/identification; copies of identification/credential cards including a transportation worker identification credential (common access card), City of New York Parks and Recreation Seasonal Employee identification card, Fire Department, New York Firefighter identification card, Andrews International identification card, Red Cross certificate Card, Security Guard credential from the New Your State Division of Licensing Services, and a Red Cross Lifeguard certificate/identification card; a post-service award for supporting the global war on terrorism; 12 letters of training/certification; and 43 character letters.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, 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.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief 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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

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:  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