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NAVY | DRB | 2007_Navy | ND0700940
Original file (ND0700940.rtf) Auto-classification: Denied

ex-BTFN, USN
Current Discharge and Applicant’s Request
Application Received: 20070705
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT-CONVICTED BY A CIVIL COURT FOR AN OFFENSE OCCURING DURING CURRENT TERM OF MILITARY SERVICE
Authority for Discharge: MILPERSMAN 3630600

Applicant’s Request:     Characterization change to: /HONORABLE
                            Narrative Reason change:


Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19890720 - 19890827             
Period of Service Under Review:
 Date of Enlistment: 19890828               Period of enlistment : Years + month extension  Date of Discharge: 19920805
Length of Service: Yrs Mths 20 D ys     Education Level: GED              Age at Enlistment:       AFQT: 68
Highest Rank/Rate: BT3             Evaluation marks: Performance: 2.9 ( 2 )   Behavior: 2.8 ( 2 )                 OTA: 3.50 (2)
Awards and Decorations (per DD 214): , , (3), , and KLM

 Periods of UA/Confinement: 19900122, 19910628, 19910701, 19910708, and 19911021-19920323 (154)

 CC:      19920109 : Charges - strong arm robbery and battery. Sentence – 6 months in Duval County Jail; 18 months and 12 months probation (concurrent); and court costs.

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:   Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education/Training:     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statement From Applicant:              From Representation:              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Improper administrative discharge process.
2. Post Service Conduct – 17 letters of recommendation documenting volunteer service over a period of 15+ years.


Decision

Date: 20080402   HEARING   Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct-Convicted by a civil court for offense occurring during current term of military service .

Discussion

Issue 1 ( ): The Applicant contends that he was improperly administratively discharged because his was never actually found guilty of the crimes for which he plead guilty and received withheld adjudication. For the purposes of administrative discharge a plea of guilty is sufficient to process a Sailor for misconduct due to a civil court conviction IAW MILPERSMAN Article 3630600. The Applicant was properly advised of his intended administrative separation due to misconduct by civil conviction. During this processing the Applicant waived his rights to consult an attorney and to have his case heard before an administrative board. After ensuring proper processing in accordance with MILPERSMAN Article 3630600 the discharge authority directed the Applicant’s discharge as under other than honorable conditions. The board found this discharge proper and in accordance with regulations.

Issue 2 ( ): Post service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct to the extent that 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. The Applicant provided 17 personal recommendations documenting 15+ years of humanitarian service including significant work through AA, NA, Hospice, counseling troubled juveniles, work with the homeless, feeding the hungry, 30 days volunteer service following 9-11 in NYC, and a year at the Nancy Reagan Youth Center. Based on a substantial and well documented history of service the Board determined by a 4 – 1 vote that relief is warranted based on equity for the Applicant’s overall character of service. The characterization of service shall be upgraded to “General (under honorable conditions)”.

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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 .


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 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 : 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. 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: 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

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