Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801468

Original file (ND0801468.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20080702

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: US N R (DEP) 19940930 - 19950814                 Active:

Period of Service Under Review:
Date of Enlistment: 19950815     Period of E nlistment : Years Extension         Date of Discharge: 1980910
Length of Service : Y ear s M onth s 26 D a ys      Education Level:        Age at Enlistment:      AFQT: 75
Highest Rank /Rate : E-3 Evaluation M arks: Performance: NFIR      Behavior: NFIR OTA: NFIR
A wards and Decorations ( per DD 214): Rifle Pistol

Periods of UA /C ONF : NJP : S CM : SPCM:

C C :
- 19980624 : Offense: CA Penal Code 425 (a) Assault with intent to inflict great bodily harm.
Sentence : 189 days in the county jail, Felony Probation

Retention Warnings: 1
- 19971029 For f ailure to establish a direct deposit account.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214. Block 25 , Separation Authority , should read: MILPERSMAN 3630605.96 Commission of a Serious Offense. Commander, Navy Personnel Command 5720 Integrity Drive, Millington TN 38055 will be notified, recommending the DD Form 214 be corrected or reissued, 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 :

Other Documentation (Describe) : Reference letters from: Mr G. Cxxxxxx , CPT R. Dxxxxxxx, USA

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

Applicant’s Issues

1. Based on one isolated incident.
2. Post s ervice conduct .

Decision

Date : 20 08 1023 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
Issue 1 : ( ) . The Applicant feels his discharge is inequitable because it was based on an isolated incident in an otherwise flawless record. 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 Applicant’s record of service was marred by a civilian conviction for violation of the California Penal Code 425 , Assault with intent to inflict great bodily harm, which constitutes the “commission of a serious offense”, the discharge basis in this case. The Applicant pointed a shotgun under the chin , and then on the temple , of an innocent bystander merely because he wanted "to mess around with the guy". Th is was a deliberate and premeditated act evidenced by the fact after the Applicant saw the victim in his apartment complex parking lot, he went back to his apartment, retrieved the two shot guns used in the assault and went though the complex looking for the victim. When he again saw the victim, the Applicant deliberately provoked a confrontation and aimed the shotgun at him, not once, but twice. When questioned by authorities, the Applicant initially denied owning a shot gun saying it was a BB gun. Upon having his apartment searched by the police where the shotguns were discovered h e finally confessed and plead guilty to the offense.

For the edification of the Applicant, d espite 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. Additionally, an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of , and does not require adjudication at , court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. An " Honorable " discharge is appropriate when the quality of the service member’s service has met the standards of acceptable conduct and performance of duty for military personnel. An " Under Other than Honorable Conditions " characterization is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member. The act of holding a shotgun under the chin and to the head of an innocent human being constitutes a significant departure of the expected conduct from a U. S. Sailor.

The Applicant was a Navy Corpsman, whose calling is to heal the sick, injured and wounded. His main function is n ot to inflict bodily harm , but to heal. He was not an inexperienced recruit when he assaulted his victim but had served almost three years of active service ; long enough to grasp and adopt the Navy Medical Corps values . His conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of the Naval Service and falls far short of what is required for an upgrade in the characterization of service . Due to the severity of the misconduct, the Board determined an u pgrade would be inappropriate.

: ( ) RELIEF NOT WARRANTED. The Applicant request an upgrade based on his post service record. He said he is has done his best to become an outstanding member of society. 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.
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 during Board reviews. The key word here is “Outstanding . The Board is looking for actions that go beyond simply daily living . Documentation to help

support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; documentation of community or church service ; certification of non-involvement with civil authorities ; evidence of financial stability or letters of
good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements. 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 provided limited documentation of post service accomplishments. He submitted only two letters of recommendation and court documents which show the original charges were downgraded to a misdemeanor. The Applicant's efforts need to be more encompassing . The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate.

After a t horough 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
29 March 2000, 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 .

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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NAVY | DRB | 2008_Navy | ND0801468

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