Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801951

Original file (ND0801951.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20080924

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)        19980225 - 19980519     Active:

Period of Service Under Review:
Date of Enlistment: 19980520     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990902      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: NFIR         Behavior: 1.0 ( 1 )        OTA: 1.00

Awards and Decorations ( per DD 214):

NJP :
- 19990114 :       Art icle 121 ( Larceny of a watch valued at $36.00)
         Awarded : Susp ended :

- 19960506 :       Article 86 ( UA ) , 2 specifications (15 minutes, 2 days)
         Article 92 (Fail to obey), 3 specifications
         Article 108 ( Destruction of government property –security seal )
         Article 134 (Unlawful entry)
         Awarded : Susp ended:

S CM :

SPCM:

C C :

- 19990504 :       Offense: Battery (sex with a minor)
         Sentence : Illinois Circuit Court - court supervis ion , sex counseling, no contact with victim, payment of court costs, no violations of laws or ordinances, report as directed by court, notify in writing of change in address, and refrain from possession of firearms/weapons. Certified copy of o rder to expunge the record of September 9, 2008 .

Retention Warning Counseling :

- 19990114 :       For NJP of 19990114 [Extracted from CO’s comments ]

NDRB Documentary Review Conducted (date):        20080124
NDRB Documentary Review Docket Number:   ND07-01238
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 :

Oth er Documentation :

Applicant Testified:
Applicant Available for Questions:
Witnesses: Yes
Observers:

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 1 September 1998 until
15 September 1999, 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

1.       Youth and immaturity and personal problems were contributing and mitigating factors.
2.       Post-service conduct.
Decision

Date: 20090930   Location: Washington D.C.       R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning ; non-judicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absences – 2 specifications totaling 2 days, 15 minutes ), Article 92 ( Failure to obey orders to go to restriction – 3 specifications ), Article 108 ( Destruction of government property – security seal ) and Article 134 (Unlawful entry) ; and civilian conviction for battery after being arrested for criminal sexual abuse ( sex with a minor female). Based on the offenses committed by the Applicant, command administratively processed for separation due to a civilian conviction, misconduct due to the commission of a serious offense and a pattern of misconduct. When notified o f a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard and elected to obtain copies of documents forwarded to the separation authority supporting the basis for separation .

: (Decisional) ( ) . The Applicant’s representative requested an upgrade in the characterization of his service to General (Under Honorable Conditions) and avers that t h e Applicant’s ability to serve was impaired by his youth and immaturity and mitigated by his personal problems. The Applicant also submitted a personal statement indicating the passing away of many of his relatives, illness of his grandmother and breaking up of the marriage of his parents while he was “ shipping out” all contributed to his misconduct. The Applicant also provided testimony admitting to the misconduct that resulted in his two NJP’s and the civilian conviction for battery ( having sex with a minor ) . The Applicant’s representative also presented evidence proving that the Applicant has completed all requirements of the court ordered probation and that the Circuit Court of Illinois directed the expung e ment of records regarding hi s arrest. Additionally, two active duty members (an officer who served with the Applicant while on active duty and an enlisted sailor ) testified on the Applicant’s behalf. Per the Vernon Hills Police Department Investigation , the enlisted witness was present at the home of the minor involved in the incident that led to the Applicant’s arrest and allegedly gave her beer. However, the witness was not asked and did not admit to this accusation during the h earing . Taking into consideration, the testimony of the Applicant and witnesses, the evidence of record , written character statements, and seriousness of the offenses committed by the Applican t the Board determined that an upgrade was not warranted . Furthermore, the Board determined the Applicant’s contentions regarding his youth, immaturity and personal problems did not serve as a justification for his misconduct or as a basis for upgrading his characterization of service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

Issue 2: (Decisional) ( ) . The Applicant’s representative is also seeking an upgrade based on the Applicant’s post-service accomplishments and submitted numerous documents including: a personal statement from the Applicant, several character references from his pastor, family members, friends, co-worker, Deputy of the Travis County Sheriff ’s Department, copy of approval letter for a home loan, tax records, letter from former employer and letter regarding his involvement in the community neighborhood watch. 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 subsequent to leaving the service. The NDRB is authorized to consider outstanding 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. 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 that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent success to date. However, after 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 frequency of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony , summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain CIVILIAN CONVICTION .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

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 NDRB 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 | ND0801951

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