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NAVY | DRB | 2008_Navy | ND0800907
Original file (ND0800907.rtf) Auto-classification: Denied

ex-CS3, USN
Current Discharge and Applicant’s Request
Application Received: 20080311
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19990520 - 19990801              Active: USN 19990802-20021001 HON
Period of Service Under Review:
 Date of Enlistment: 20021002      Period of Enlistment : Years Extension  Date of Discharge: 20040716
Length of Service: Yrs Mths 15 D ys     Education Level:         Age at Enlistment:       AFQT: 32
Highest Rank/Rate: MS3    Evaluation Marks: Performance: 4.0 ( 3 )    Behavior: 3.3 ( 3 )         OTA: 3.57
Awards and Decorations (per DD 214): (2)

Periods of UA/CONF:

NJPs:   

SCMs:   

SPCMs:  

Warrant of Arrest:      
20040312 : Offense - FELONY (Class 4: Cause serious injury to the life or health of a child by willful act) .
 Sentence – (Pending court date) .
Retention Warnings: .
Types of Documents Submitted/reviewed

 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)


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

Applicant’s Issues

1.       Educational opportunity.
2.       Had not been convicted at the time he was discharged.
3.       Post service conduct.

Decision

Date: 20080814      Location: Washington D.C  R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
Discussion

 : The Applicant is seeking an upgrade to obtain educational benefits from the Veteran’s Administration. He is currently incarcerated at the St. Brides Correctional Center in Virginia and desires to attend obtain a degree in drafting/computer–aided drafting technology from Howard University. which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum, for additional information regarding .

Issue 2 (Equity): RELIEF NOT WARRANTED. The Applicant submitted additional documentation on 11 June 2008 contending he should receive an upgrade because the military discharged him under adverse conditions prior to his conviction, without providing him legal representation. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Pursuant to MILPERSMAN 1910-142, separation of a service member due to 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’s argument that his discharge should be upgraded because he had not been convicted at the time is not persuasive since MILPERSMAN 1910- 142 does not require a case to be adjudicated at the time of discharge if there is a preponderance of evidence the Applicant committed a serious offense.

The record reflects a preponderance of evidence that the Applicant had committed a serious offense did exist, as indicated by an investigation conducted on 29 January 2004, wherein the Applicant requested a meeting with a detective from the Virginia Beach Police Department, Special Victims Unit, in Virginia Beach, Virginia, who had previously interviewed the Applicant regarding the physical abuse of his 4 month old son. The Applicant met with the detective and provided additional testimony where he confessed to throwing his son into his crib with great force on at least 2 occasions causing the child to bounce off the mattress causing his head and chest to strike the metal and wooden bars on the side of the crib. The Applicant also admitted to pinning his son’s arms to his side and rapidly shaking him, causing the child’s head to violently move back and forth at least 8 times, causing the child’s chin to strike his chest, and on one occasion the Applicant shook the child until his eyes began to bulge. He indicated these brutal acts were done intentionally. Based on the foregoing investigation and other evidence the Applicant was administratively processed for misconduct due to commission of as serious offense and provided the opportunity to present his case before a military administrative board. Pursuant to the Administrative Processing Notice of 17 May 2004, the Applicant waived all of his rights, including the right to consult with qualified counsel, request for an administrative board and to be represented by counsel at the administrative board, thus accepting the discharge recommended in the letter of notification. Based on the review of available evidence provided by the Applicant and contained in his record, there is no indication the military wrongfully discharged or turned its back on the Applicant as he alleged. The Board determined an upgrade would be inappropriate.

Issue 3 (Equity): RELIEF NOT WARRANTED. The Applicant submitted several matters of post service accomplishments for consideration to support his request for a discharge upgrade. The NDRB is authorized to consider post-service factors in the re-characterization 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. 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 civilian life subsequent to

leaving Naval service. Examples of documentation that should be provided to the Board for consideration include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and verifiable proof 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 conduct mitigates the reason for the characterization of discharge. The Applicant has submitted for review a letter from his father, a letter from a clinical social worker from the Commonwealth of Virginia where he is currently incarcerated and an Inmate Transcript Summary. The Board determined the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge nor substantiate the kind of post service conduct looked for by the NDRB as the basis for an upgrade. The Board determined an upgrade based on post service conduct would be inappropriate.

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

Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse

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 in which grievous bodily harm is intentionally inflicted upon a child under the age of 16.

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 or is referred to a court martial 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 other medical related reasons. 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 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 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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