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NAVY | DRB | 2008_Navy | ND0801426
Original file (ND0801426.rtf) Auto-classification: Denied

ex-IS1, USN
Current Discharge and Applicant’s Request
Application Received: 20080623
Characterization of Service Received:
Narrative Reason for Discharge: CIVIL CONVICTION
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19940630 - 19940720                 Active: 19940721 – 19990625 HON
                                                               19990626 – 2004062 1 HON

Period of Service Under Review:
Date of Enlistment: 20040622     Period of E nlistment : Years Extension         Date of Discharge: 20070710
Length of Service : Y ear s M onth s 18 D a ys     Education Level:        Age at Enlistment:     AFQT: 54
Highest Rank /Rate : IS1 Evaluation M arks: Performance: 4.0 ( 4 )    Behavior: 4.0 ( 4 )        OTA: 4.03
Awards and Decorations ( per DD 214): NMCAM (2) GCM (4) NDSM (2) GWOTSM GWOTEM NUC AFEM SSDR (2) OSR (2) AFSM NER (3) P istol EAWSI

NJP : S CM : SPCM: Retention Warnings:

C C :
- 20070326 : Offense: Assault in the fourth degree-domestic violence .
Sentence : Placed on community supervision for a period of twelve months and shall serve a jail term of 365
days with 335 days suspended, and to remain suspended for twelve months.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19940721 TO 20040621 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :





Related to Post-Service Period (cont):

Other Documentation (Describe) :
- Statement from wife
- Wife’s court citation
- Wife’s arrest record
- Phone b ill

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

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 .



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

Applicant’s Issues

 1. Isolated incident over a 13 year career ; civilian conviction was for a misdemeanor .
 2. Denied due process at the administrative separation board.

Decision

Date: 20 08 1030             Location: Washington D.C .        R epresentation :

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

 : ( ) . The Applicant contends his discharge was unfair because it was based on an isolated incident in 13 years of service and a misdemeanor conviction in civil court . He sub mitted a personal statement, a statement from his ex-wife , document s pertaining to his ex-wife’s assault , phone bills , and in-service records in support of his request for an upgrade. 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. The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a plea of guilty to Domestic violence - assault in the fourth degree , resulting in a civilian conviction on 26 March 2007. As noted in the Superior Court for Island County, Washington Judgment and Sentence of 30 March 2007 , the Applicant admitted to intentionally punching his wife in the fac e and not in self defense. Although the discharge for one civili an conviction may see m harsh, that conviction w as for an assault that could have resulted in serious bodily injury . Additionally, mandatory processing is required for misconduct which could result in serious bodily injury and usually results in an unfavorable characterization of discharge.

A fter a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct ; an upgrade would be inappropriate.

: ( ) The Applicant further contends his discharge was inequitable because of the following: 1) the chairman of the administrative separation board was biased ; 2) he was denied a JAG lawyer ; 3) a falsely crated mid-term evaluation was used during the proceedings ; 4) he was denied the opportunity evidence of self defense in regard to the assault on his ex-wife ; and 5) he notified his command of his ex-wife’s harassment and received no support in his efforts to avoid conflicts on the base.

The evidence of record reflects that an administrative board was held on 23 May 2007. After the commencement of the board the recorder and the Applicant’s counsel questioned all of the board member s to determine if there were any challenges for cause to remove a board member; n either the record er or Applicant’s counsel made a challenge for cause to remove any board member at that time nor at any time during the proceedings. Therefore, the Board has determined t h e allegation the chairman was biased has no merit.

In regard to the allegation the Applicant was denied a JAG lawyer, the transcript of the board proceedings, as well as the Appointment of an Administrative Board for the Applicant of 9 May 2007, reflect s the Applicant was assigned a military attorney, LT B . A ., JAGC, USN to represent him at the administrative board and the same counsel did in fact represent him at the proceeding s . Furthermore, there is no indication the Applicant objected to the representation by the LT at the Board or request ed additional time to prepare his case . Therefore, the Board has determined this allegation has no merit.



The Applicant further alleges a false mid –term evaluation was used during the proceedings. The record of transcript does not reflect this issue was raised during the Board nor does the Applicant’s counsel submit a letter of deficiency after the

proceedings to object to the introduction of this evidence. Additionally, the Applicant has not submitted any evidence to this Board to substantiate his allegations. Therefore, the Board has determined this allegation has no merit.

The Applicant also alleges he was denied the opportunity to present evidence of self defense in regard to the assault on his now ex-wife. Pursuant to MILPERSMAN 1910- 144, civil convictions are binding on the administrative boards in regard to whether misconduct did occur and the administrative board has to find that misconduct has occurred. Therefore, the administrative board was not required to entertain testimony of self defense to an assault for which the Applicant had already been convicted. Nonetheless, the administrative board transcript reflects the Applicant provided substantial testimony regarding the ass ault. On page 28 of the transcript, the Applicant admitted he could have avoided this wrongdoing (punching his ex-wife) and that he was not thinking at the time he struck her and “that is why that punch was so strong”. Additionally, there is no evidence in the record, nor provided by the Applicant to support his allegation the command failed to support him in efforts to avoid conflicts with his wife while on base . Based on the foregoing, the Board has determined th ese allegation s are also without merit .

The Applicant has requested an upgrade to his discharge characterization to “Honorable”. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Board acknowledges the civil conviction as a significant negative aspect in the Applicant military record and determined the awarded discharge characterization was appropriate; an upgrade 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


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 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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