Search Decisions

Decision Text

NAVY | DRB | 2006_Navy | ND0600045
Original file (ND0600045.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AT3, USN
Docket No. ND06-00045

Applicant’s Request
The application for discharge review was received on 20051004. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct (civil conviction) .




 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I wish to have my discharge changed to honorable so my RE code will be changed, and I can go into the reserve, or active in a different branch of service I think I have been unfairly given this RE-4 code I have been falsely accused of a crime and the courts proved that but my command xo mad his own opinion on me all my superiors have good things to say about me as you will se when you pull my records and see all my e-vales I am not perfect by I do not deserve to have a RE -4 code”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Evaluation Report & Counseling Record for the period of June 16, 2004 to June 15, 2005 (2 pgs)
Letter from S_ S_, State Attorney Office, Fourth Judicial Circuit Court of Florida, dtd July 6, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000509 – 20000619               COG
         Active: USN                        20000620 – 20040328               HON

 Period of Service Under Review :
Date of Enlistment: 20040329             Date of Discharge: 20050725

 Length of Service (years, months, days):

         Active: 01 03 27
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 27

 Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)     Behavior: 2.0 (2)                 OTA: 2 .70 [Extracted from case file]

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, FPE Jun 03, Navy “E” Ribbon, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal (2), Meritorious Unit Commendation, Navy and Marine Corps Achievement Medal.

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT (CIVIL CONVICTION), authority: MILPERSMAN, Article 1910-144 (formerly 3630610).
Chronological Listing of Significant Service Events :

040329:  Reenlisted this date for a term of 4 years.
050417:  Civil Conviction: Duval County, Jacksonville, Florida for Improper Exhibition of a firearm.
 Sentence: Pled no contest, Adjudged guilty withheld, fine/cost $190.00.

050621:  Applicant entered Fourth Judicial Circuit of Florida pre-trial intervention program. Charges were reduced to aggravated assault. Upon completion of program, all charges will be dismissed.

050705:  Applicant completes pre-trial intervention program. Charges dismissed. (Extracted from documents provided by Applicant)

050707:  Commanding Officer, Patrol Squadron THIRTY recommended to Commander, Navy Region Southeast, that the Applicant be administratively discharged with a general (under honorable conditions) by reason of misconduct civilian conviction. Commanding Officer’s comments: “I have reviewed AT3 A_ C. H_ (Applicant) enlisted service record and enclosure (1). AT3 H_ (Applicant) wrongfully pointed a black semi automatic weapon at a civilian security guard in a hotel parking lot. AT3 H_ (Applicant) actions meet the requirements for administrative separation due to misconduct-civilian conviction. Therefore, based on the facts of this case, I direct AT3 H_ to be administratively separated from the naval service with a General (Under Honorable Conditions) discharge due to misconduct –civilian conviction, with a RE-4 separation code.”

050711:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct civilian conviction.

050711:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050725 by reason misconduct due to civil conviction (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant requests an upgrade of his discharge characterization to honorable. The Applicant contends that he was falsely accused of a crime and implies that court records support this claim. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s service was marred by a civil conviction. The NDRB found no impropriety or inequity in the Applicant’s discharge. The record shows credible evidence that the Applicant committed misconduct. On 20 050417 the Applicant pled no contest to the charge of improper exhibition of a firearm and was adjudged guilty by the Duval County Court, Jacksonville, Florida. The Board advises the Applicant that his completion of a pre-trial intervention program, where charges were reduced to aggravated assault, do not absolve or mitigate the misconduct for which the Applicant’s separation was based. Navy regulations (NAVPERS 15560C, Change 11, Article 1910-144), stipulates that members may be separated based on civilian convictions, or actions tantamount to findings of guilt (e.g. Pretrial intervention programs). Further, processing is mandatory for violent misconduct, which results in, or had potential to result in, death or serious bodily injury (e.g., homicide, arson, armed robbery, assault with a deadly weapon, etc.). The Applicant’s misconduct is a violation of Article 128 (assault with a dangerous weapon or means likely to produce grievous bodily harm or death: committed with a loaded firearm) and is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant requests a change to his RE-4 so he can go into the reserve or active in a different branch of service. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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.

 Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective
29 April 2005 until 27 July 2005, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 with a dangerous weapon or means likely to produce grievous bodily harm or death: committed with a loaded firearm)

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
PART IV - INFORMATION FOR THE APPLICANT
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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the 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 | 2000_Navy | ND00-00199

    Original file (ND00-00199.rtf) Auto-classification: Denied

    The applicant attended an alcohol abuse education program, then he and his wife received marriage counseling at the Navy Family Service Center from April through August 1986. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).In the applicant’s issue 1, the Board determined this issue is without merit. In regards to the employment and changed life issues: the Board...

  • NAVY | DRB | 2006_Navy | ND0600164

    Original file (ND0600164.rtf) Auto-classification: Denied

    ND06-00164 Applicant’s Request The application for discharge review was received on 20051103. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). Instead I was separated from the Navy and given an Other Than Honorable Discharge.

  • NAVY | DRB | 2005_Navy | ND0501212

    Original file (ND0501212.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Applicable regulations permit commanding officers, in certain types of serious misconduct, even though alleged, to make a determination as to the potential for further naval service for service members under their charge. After a review of the Applicant’s service record and evidence presented to the NDRB from the Trial Order from the Circuit Court of the City of...

  • NAVY | DRB | 2001_Navy | ND01-00196

    Original file (ND01-00196.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 961030: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was...

  • NAVY | DRB | 2006_Navy | ND0600934

    Original file (ND0600934.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Decisional Issues Equity – Isolated incident 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) 20010327 - 20010615ELS USNR...

  • NAVY | DRB | 1999_Navy | ND99-00862

    Original file (ND99-00862.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 970703: Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to a civilian conviction as evidenced all domestic violence incidents in your current enlistment; your Commanding Officer's nonjudicial punishment of 17 November 1995, for a violation of the UCMJ, Article 86, 2...

  • NAVY | DRB | 2005_Navy | ND0501510

    Original file (ND0501510.rtf) Auto-classification: Denied

    Now the military wants to discharge me because of the drug misdemeanor out in town. 040128: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct-civilian conviction and misconduct due to drug abuse.040128: Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.040427: An Administrative Discharge Board,...

  • NAVY | DRB | 2000_Navy | ND00-00368

    Original file (ND00-00368.rtf) Auto-classification: Denied

    In the applicant’s issue 1, the applicant states that he was “young” and that his “knowledge about the military was nil” and the “navy did not counsel me they just punished me.” The applicant had significant misconduct, both in the service and in the civilian sector. Regardless of an Administrative Board's recommendation, CHNAVPERS is Separation Authority for members being separated by reason of misconduct due to commission of a serious offense as evidenced by sexual perversion or sexual...

  • NAVY | DRB | 2003_Navy | ND03-01193

    Original file (ND03-01193.rtf) Auto-classification: Denied

    My record of convictions by civil authorities while I was in service indicates only one offense that had adjudication (not a conviction) of guilt withheld and probation terminated prior to my discharge from the United States Navy as presented in my background above. I have struggled since my discharge reconciling how my only evaluation (Supporting Document 7) can recommend me for promotion while Captain S_ states my “conduct has been detrimental to the good order and discipline of Naval...

  • NAVY | DRB | 2005_Navy | ND0500949

    Original file (ND0500949.rtf) Auto-classification: Denied

    After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. After a thorough review of the Applicant’s record, issues, and post service accomplishments, the Board determined these factors insufficient to mitigate the seriousness of the offenses for which the discharge was awarded. The Manual for courts-martial authorizes the...