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NAVY | DRB | 2008_Navy | ND0800650
Original file (ND0800650.rtf) Auto-classification: Denied

ex-HA, USN
Current Discharge and Applicant’s Request
Application Received: 20080229
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19930729 - 19940102              Active:
Period of Service Under Review:
 Date of Enlistment: 19940103      Period of enlistment : Years Extension          Date of Discharge: 19960620
Length of Service : Yrs Mths 18 D ys      Education Level:         Age at Enlistment:       AFQT: 45
Highest Rank /Rate : HA     Evaluation marks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : DISCHARGED IN ABSENTIA DUE TO CONFINEMENT IN CIVILIAN JAIL

C C :      
         19960207 : Offense: Attempted murder within the meaning of California Penal Code sections 664, 187 and 189 (2 counts); personally using a firearm with the meaning of California Penal Code section 12022.5(a) (2 counts); and inflicting great bodily injury on a person(s) as to cause paralysis of a permanent nature within the meaning of California Penal Code section 12022.7(b) (2 counts) . Sentence – 8 years incarceration .


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 Representat ion :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Discharge improper –done as a result of an ongoing civilian felony trial during his absence .
2. Had no history of misconduct in 18 months of service prior to the civilian felony conviction .

Decision

Date: 20 08 0523             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE) .
Discussion

 : (Equity) . The Applicant contends his discharge was improper because it was done in his absence due to felony charges brought against him in San Diego County Court. MILPERSMAN 3630610 states members may be separated based on civilian conviction, or actions tantamount to findings of guilt, when the specific circumstances warrant separation and a punitive discharge would be authorized for the same or closely related offenses . Based on the Verdict of the Superior Court of the State of California, County of San Diego, filed on 7 February 1996, a jury found the Applicant guilty of the crime of attempte d murder, in that he personally used a firearm to inflict great bodily injury upon another person causing paralysis of a permanent nature . Pursuant to MILPERSMAN 3630605, a m ember may be separated based on the commission of a serious military or civilian offense when specific circumstances of the offense warrant separation; and the offense would warrant a punitive discharge . Violation of UCMJ Article 80, Attempted murder , is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. Commission of a serious offense does not require adjudication by non - judicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statement provided by the Applicant does not refute the evidence of record in this case which supported the basis for his separation due to civilian conviction and commission of a serious offense.

The record reflects the Commander, Naval Medical Center, San Diego notified the Applicant of his proposed administrative processing by reason of misconduct due to the civilian conviction and commission of a serious offense . P ursuant to p aragraph 5 of this notice , the Applicant wa s advised if he beg i n s a period of unauthorized absence following delivery of this notice, the separation processing may proceed in his absence or held in abeyance until he returns . P er p aragraph 6, he was further advis ed civilian convictions occurring before and after this notice may be considered by the separating authority in determining retention or separation and characterization of discharge. The date on this notice of proposed administrative board procedure is illegible . Nonetheless, the Applicant signed it, acknowledging receipt of notification. On 18 March 1996 t he Applicant submitted a s tatement of a wareness and r equest for waiver of privileges to the Commander, Naval Medical Center, San Diego, indicating he had consulted with counsel and waived all of his rights, except the right to obtain copies of documents that will be forwarded to the Chief of Naval Personnel supporting the basis for the proposed administrative separation . On 13 May 1996, BUPERS sent out a message directing the Applicant to be discharged in absentia within 10 days of receipt of the same , under other than honorable conditions due to misconduct. Based on the evidence contained in the record, the Board determined the Applicant received proper notice of administrative separation processing and 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Therefore, the Board has determined r elief is not warranted.

: ( ) . The Applicant contends the discharge was unfair because he h ad no history of misconduct during his 18 months of service prior to the civilian felony conviction . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by a civilian conviction for attempted murder . The summary of service clearly documents th e Applicant willfully, deliberately and with premeditation used a firearm in an attempt to kill and inflict great bodily injury upon another person causing paralysis of a permanent nature . The Applicant’s conduct which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an upgrade to general (under honorable conditions) . Therefore , the Board has determined relief is not warranted.

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 that

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violation of the UCMJ, Article 128 , Assault with means likely to produce grievous bodily harm or death or Article 80, Attempted murder .



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, provi ded 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 grante d 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.
Employmen t / 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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