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NAVY | DRB | 2008_Navy | ND0801964
Original file (ND0801964.rtf) Auto-classification: Denied

ex-AT2, USN
Current Discharge and Applicant’s Request
Application Received: 20080926
Characterization of Service Received:
Narrative Reason for Discharge: SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19991109 - 19991128     Active:   19991129 - 20040822 HON

Period of Service Under Review:
Date of Enlistment: 20040823     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080115      Highest Rank/Rate: AT2
Length of Service : Y ear s M onth s 23 D a ys
Education Level:        AFQT: 44
Evaluation M arks: Performance: 4.2 ( 4 ) Behavior: 3.2 ( 5 ) OTA: 3.48

Awards and Decorations ( per DD 214):      (2) GWOTEM GWOTSM SSDR (3) EAWS

Periods of UA /C ONF : NJP : S CM : SPCM: Retention Warning Counseling :

C ivil Arrest :
- 20070717 :       Offense: Arson in the First Degree
         Sentence : Scheduled for 20080226

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 :
                  -VA Form 21-4138 Statement in support of claim for VA benefits.
                  -VA Benefits letter dated 4 August 2008.




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

Applicant’s Issues

 1. V eteran’s Administration (V A ) considers her service honorable.
2. Record of service.
3 . Misconduct by Administrative Separation Board.
4. Others involved in misconduct not separated.

Decision

Date: 20 0 9 0129             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .
Discussion

 : ( ) . The Applicant contends she is entitled to a discharge upgrade because the VA considers her service as honorable. 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 charge of arson in the first degree. Although she was not charged by the Navy, her actions constitute a violation of the Uniform Code of Military Justice (UCMJ): Article 126 (Arson). Violation of Article 126 is considered a serious offense 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. For the edification of the Applicant, a service member may be separated based on the commission of a serious offense, under military or civilian standards , when the offense would warrant separation and a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence . A violation of Article 126 meets this criterion. The transcript of her a dministrative s eparation b oard held 5 December 2007 shows both the Battalion Fire Chief of Oak Harbor, Washington, and a detective with the Oak Harbor Police Department provided sworn testimony the Applicant confessed to setting fire to her vehicle in an attempt to defraud her insurance company. Furthermore, evidence was presented which show ed the Applicant persuaded another Sailor to act as an accomplice in her crim inal activity . The administrative separation b oard determined the preponderance of the evidence supported her misconduct and recommended an “Under Other Than Honorable Conditions” discharge.

The Applicant should understand although the VA has determined her service as h onorable, this determination only applies in reference to VA benefit entitlements , not to the discharge characterization of service . As stated in the letter from the VA submitted by the Applicant dated 4 August 2008, her service i s “honorable for VA purposes.” This decision is not binding upon the Navy nor adequate justification for an upgrade . The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends she is entitled to a discharge upgrade due to her record of service. Despite a Sailor’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. The NDRB determined an upgrade based upon the Applicant’s record of service would be inappropriate.

: ( ) . The Applicant contends she is entitled to a discharge upgrade due to misconduct by her a dministrative s eparation b oard. Specifically she claims the members of the board determined their decisions before the board convened; that members of the board lied; and that the board members considered her a home-wrecker . The record of evidence does not show any improper conduct by board members nor does the Applicant provided documentation of her claims, other than her statement . The NDRB rejects the Applicant’s contention as being without merit. The NDRB determined a n upgrade would be inappropriate.

: ( ) . The Applicant contends she is entitled to a discharge upgrade because the other Sailor charged in this case was not separated. The a dministrative s eparation b oard which heard her case had no obligation to reach the same determination as a b oard held for another Sailor. The a dministrative s eparation b oard, as with the NDRB, considers each case on its merits on a case-by-case basis. The NDRB rejects the Applicant’s contention as being without merit. The NDRB determined 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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 .

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 126 .



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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