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NAVY | DRB | 2008_Navy | ND0800609
Original file (ND0800609.rtf) Auto-classification: Denied

ex-SK2, USN
Current Discharge and Applicant’s Request
Application Received: 20080111
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change: Secretarial Action


Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19880615 - 19880630              Active: 19880701-20020502 HON
 Period of Service Under Review:
 Date of Enlistment: 20020503                        Period of enlistment : Years              Date of Discharge: 20060630
Length of Service: Yrs Mths 27 D ys     Education Level:                  Age at Enlistment:       AFQT: 41
Highest Rank/Rate: SK1             Evaluation marks: Performance: 3.7 ( 4 )   Behavior: 3.7 ( 4 )                 OTA: 3.85 (4)
Awards and Decorations (per DD 214): (4), , (2), , (5), KLM, EAWS, , , GCA (3), NMCOSR (4), CGOSR, (2), SWASM (2), NUC (2), JMUA, and FLOC (2)

 NJP:     20060124: Violation of UCMJ Articles 107 (false official statement) and 123 (forgery, 2 specifications); awarded - and

CC:      20040305 : Offense: (Count 1) Corporal injury to spouse and/or roomate, (Count 2) assault with deadly weapon/force likely to cause GBI; - use of a deadly weapon; (Count 3) making a criminal threat, - use of a deadly weapon; (Count 4) tampering with electric, telephone, and cable television; (Count 5) attempting to dissuade a witness from reporting a crime . Sentence – 5 yrs probation, commitment to sheriff for 365 days (stayed pending successful completion of probation), fine of $239.00, $20.00 court fee, probation cost, restitution of $200.00, restitution to victim at a combined rate of $100.00 per month starting 20040503, bail exonerated at $70,000.00 .

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 Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe) Evidentiary Hearing Order from Superior Court of California, Letter from V_ M_, DPO, Domestic Violence Unit_, Notice of and Motion to Terminate Probation from Superior Court of the State of California


Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “continuous honorable service from 88 JUN 01 – 02 MAY 02 ”
        
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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


Applicant’s Issues

 1. Reenlistment code to RE-1.
2. The Administrate Discharge Board voted for an “other than honorable” discharge suspended for six months.
3. Misconduct was attributable to the Applicant’s divorce and vindictive acts of the former spouse.
4. One incident in over 18 years of continuous honorable service.


Decision

Date: 20080404            Location: Washington D.C         R epresentation : Private Attorney
By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 (Equity): The Applicant contends that his discharge was inequitable because the Administrative discharge board voted to suspend his discharge for six months. The decision of the Administrative board is merely a recommendation to the commanding officer. The discharge authority weighs this information in addition to the overall service record in his or her final decision, however the Administrative boards decision carries no authority it is just a recommendation. Accordingly, relief on this basis is not warranted.

Issues 3 ( ): The Applicant contends that his misconduct was the result of his divorce and vindictive spouse. Despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The characterization of service is a description of the total service provided during the member’s enlistment. 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 under other than honorable conditions 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. The Applicant’s service was marred by NJP for violations of UCMJ Articles 107 (false official statement) and 123 (forgery, 2 specifications) and a civilian conviction for corporal injury to spouse, assault with a deadly weapon, use of a deadly weapon, criminal threat, tampering, and attempting to dissuade a witness. Each violation of UCMJ Articles 107 and 123 constitutes the “commission of a serious offense” which is punishable by a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a Courts-Martial. The Applicant was properly advised of his intended administrative separation due to misconduct by the commission of a serious offense, civilian conviction and family advocacy program rehabilitation failure. During this processing the Applicant elected his right to consult an attorney and to have his case heard before an administrative board. After hearing the Applicant’s case the Administrative board found unanimously that the Applicant had committed misconduct due to the commission of a serious offense. The Administrative board then voted 2-1 that the misconduct warranted separation with a characterization of service as under other than honorable conditions. The Administrative board recommended to the commanding officer that the discharge be suspended for six months. The commanding officer then recommended to the Commander Navy Personnel Command via Commander Amphibious Group Three the Applicant’s discharge under other than honorable conditions based on a lack of integrity and serious civilian and military offenses. The Commander Amphibious Group Three agreed with the commanding officer an additionally recommended the Applicant’s discharge under other than honorable conditions. After ensuring proper processing in accordance with MILPERSMAN 1910-142 the discharge authority directed the Applicant’s discharge under other than honorable conditions. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

Issue 4 (Equity): The Applicant contends that his discharge was unfair and based on his one offense in 18 years of service. Per regulation the decision to administratively separate a service member is made independently of the imposition of NJP. The Applicant was taken to nonjudicial punishment on 20060124 for a violation of UCMJ Articles 107 (false official statement) and 123 (forgery, 2 specifications). For this misbehavior the Applicant was awarded restriction and reduction in rank. Subsequently the commanding officer determined that it was in the best interest of the U.S. Navy to process the Applicant for administrative separation. When a member is processed for administrative separation all reasons for separation must be included in the administrative process, this includes all nonjudicial punishments, civilian convictions, court martials, retention warnings, and councelings during the current enlistment. With this information the discharge authority makes the decision of retention or separation and determines the reason for separation and the overall characterization of the member’s service.

With regard to the narrative reason the separation process was in strict compliance with the Naval Military Personnel Manual. In accordance with regulation, when separation processing is warranted for more than one reason the service member shall be processed for all valid causes. The Applicant was properly processed for separation by reason of misconduct due to the commission of a serious offense, misconduct due to civilian conviction and family advocacy program rehabilitation failure. The summary of service clearly documents the Applicants violation of UCMJ Articles 107 (false official statement) and 123 (forgery, 2 specifications). Violations of UCMJ Articles 107 and 123 constitute the “commission of a serious offense”, the discharge basis in this case. The separation authority determined that misconduct due to the commission of a serious offense most clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption. After a thorough review of the available evidence to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant the Board found that


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

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 violations of the UCMJ, Articles 107 and 123.

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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