Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801619

Original file (ND0801619.rtf) Auto-classification: Denied

ex-BMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20080730
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3610240 (commission of a serious offense)

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

Summary of Service

Prior Service:
Inactive: USNR 19881017 - 19881019               Active: 19881020 - 19920901

Period of Service Under Review:
Date of Enlistment: 19920902      Period of Enlistment : Years Extension         Date of Discharge: 19940804
Length of Service: Year Months 03 D ays        Education Level:        Age at Enlistment:      AFQT: 25
Highest Rank/Rate:       BM3       Evaluation Marks: Performance:   3.4 ( 5 ) Behavior: 3.3 ( 5 )        OTA: 3.64
Awards and Decorations (per DD 214):

Periods of UA/CONF: SPCM: CC:

NJP:
- 19930825 : Article 121 (Wrongful appropriation of 1987 Ford Ranger pickup truck, military property)
Awarded: Suspended:

SCM: 1
- 19940426 : Article 121 (Larceny and wrongful appropriation)
Sentence: RESTR
CA Action: 19940506

Retention Warnings: .
- 19931119 : For wrongful appropriation of government property.

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
19881017 UNTIL 19920901”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MILPERSMAN 3630600 ”

The NDRB will recommend to the Commander, 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:

Related to Post-Service Period (cont):

Family/Personal Status:          Community Service:                References:
Additional Statements:
From Applicant:         From Representation:     From Congress member:

Other Documentation (Describe):

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 121, Larceny.

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

Applicant’s Issues

1. Entitled to service connected disability for a head injury.
2. Separation code is HKQ.
3. In-service and post service performance.

Decision

Date: 20081106 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

: The Applicant contends he is entitled to a service connected disability for traumatic head injuries sustained while on active duty. This is 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, specifically the paragraphs concerning Service Benefits, Medical Conditions and Misconduct for additional information regarding .

The NDRB did review the Applicant’s medical record and determined he was evaluated by a neurosurgeon on 12 November 1991 to determine fitness for duty after sustaining a frontal depression skull fracture as a result of being attacked by a shipmate wielding a wrench. The neurologist noted there was no edema or tenderness and the neurological exam was within normal limits. The neurologist also noted the wound was well healed and recommended the Applicant resume full duty. There is no indication in the Applicant’s record he was recommended for a medical discharge or any disability as a result of the head injury at the time of his discharge.

Issue 2: (Equity) RELIEF NOT WARRANTED. The Applicant contends his separation code (HKQ) is wrong and should be either JKM (Misconduct, Pattern of Misconduct) or JKN (Misconduct, Minor Disciplinary Infractions). 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 1 retention warning for wrongful appropriation of government property, 1 NJP for a violation of the Uniform Code of Military Justice (UCMJ): Article 121 (Wrongful appropriation); and 1 SCM for another UCMJ violation of Article 121. These are considered serious violations which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted for an administrative discharge instead. The Applicant was subsequently notified of administrative separation due to commission of a serious offense and waived all of his rights except the right to submit a statement and obtain a copy of the documents to be forwarded to the separation authority. The discharge was approved and a separation code of HKQ was assigned. This code was used as required and per MILPERSMAN 3630600 because the Applicant was discharged due to misconduct - commission of a serious offense and waived his board: HKQ is the proper separation code for the circumstances of the Applicant’s discharge. As noted above in the paragraph ‘ Administrative Corrections to the Applicant’s DD 214’, the NDRB requested an administrative correction to reflect the correct separation authority of 3630600 and not 3610240. The Board determined the correct separation code was administered and a change would be inappropriate.

Issue 3: (Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge should be upgraded based on in-service and post service performance. He has provided in-service records and character references for the Board’s consideration as post service conduct. 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.
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 the service. The NDRB is authorized to consider outstanding in-service and post-service factors in the recharacterization of a discharge 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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; and documentation 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Board found the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent success in obtaining employment. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct and the evidence of in-service and post-service conduct were not sufficient to convince the Board an upgrade was appropriate at this time.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and 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, 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 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 | ND0801619

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