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NAVY | DRB | 2009_Navy | ND0900516
Original file (ND0900516.rtf) Auto-classification: Denied

ex-AME1, USN
Current Discharge and Applicant’s Request
Application Received: 20081231
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) 19910304 - 19910324         Active:  USN 19910325 - 19930324 HON
          USNR (DEP) 19950711 - 19950904 COG               19950905 - 19971204
                                    19971210 - 20001129


Period of Service Under Review:
 Date of Enlistment: 20001130     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060414      Highest Rank/Rate: AME1
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 4.6 ( 8 )      Behavior: 3.5 ( 8 )        OTA: 4.16

Awards and Decorations ( per DD 214):      (2) CG J (2) KLM (2) FLoC (2) NUC GCM GWOTSM

Periods of UA /C ONF :

NJP : S CM : SPCM:

C C :
- 20050620 :       Offense: Inflict corporal injury on spouse/cohabitant - misdemeanor
         Sentence : Probation for 4 years ; counseling ; no contact with victim ; abstain from intoxicating beverages ; submit to chemical testing ; not to operate a motor vehicle unless properly licensed and insured ; not own, possess, purchase any firearms ; community service for 20 hours ; enroll in and successfully complete one year domestic violence batterer's program, proved proof of enrollment within 30 days, and proof of completion ; fine $400.00 ; restitution of $100.00 ; court fees of $629.00. Fine suspended pending revocation of probation.

- 20060111 :      Offense: Drunk driving BAC over 0.08 - misdemeanor
         Sentence: Probation for 3 years ; abstain from intoxicating beverages ; submit to chemical testing ; not to operate a motor vehicle unless properly licensed and insured ; enroll in and successfully complete a 3 month first offender DUI Program ; fine $1,495.00 ; restitution of $100.00, plus time payment fee of $35.00

Retention Warning Counseling:

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 :

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 .



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

Applicant’s Issues

 1. Discharge improper because command used “instances from ex-wife to discharge me ”.
2. Discharged because HIV positive.
3 . While in custody of police department never received legal counsel from command or base.
4. Post service conduct.

Decision

Date: 20 0 9 0402             Location: Washington D.C .        R epresentation :

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

 : ( ) . The Applicant is seeking a change in the narrative reason and upgrade in the characterization of service , contending the command used instances from his ex-wife and his positive HIV status as the basis to discharge him from the Navy. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge or characterization of service if such a change is warranted. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue s.

The record of evidence reflects the Applica nt had two civilian convictions; the first on 20 June 2005 for inflicting corporal injury on a spouse or cohabitant and another one on 11 January 2006 for d runk driving (BAC over .08) . He was subsequently administratively discharged based on misconduct due to the commission of a serious offense. Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The Applicant’s civilian convictions resulted from the commission of serious offenses in violation of Article 128 and Article 134 of the Uniform Code of Military Justice (UCMJ) and could have result ed in a punitive discharge and confinement if awarded as part of a sentence in a special or general court-martial. Based on the foregoing evidence there was sufficient basis for an administrative separation due to misconduct based on the commission of a serious offense . Furthermore, there is no evidence in the record, nor produced by the Applicant to support the contention the command improperly discharged him due to his ex-wife’s behavior or his HIV status. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

T he NDRB did note a technical impropriety in the Applicant’s separation processing. Pursuant to t he commanding officer’s letter of 28 March 2006 , the Applicant was to be separat ed with a separation ( SPN ) code of JKQ , indicating the Applicant was separated without a Board. Pursuant to the MILPERSMAN members with six or more years of service are entitled to an administrative board. Based on this evidence of record it does not appear the Applicant was afforded this right . Nevertheless, the NDRB is convinced this procedural error was not prejudicial to the Applicant and therefore affords him no relief. Based upon a review of the evidence of record, the NDRB concluded more likely than not, the discharge and characterization of service would have remained the same if the error had not been made and thus relief based upon this error is not warranted. The NDRB also determined based on the seriousness of the offenses for which the Applicant was convicted and lack of mitigating evidence the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he did not receive legal counsel from the command or base while in custody of the civilian police department. The NDRB has determined this case is without merit since the military does not have an obligation to represent service members in matters pertaining to civilian charges and the Applicant has not provided any evidence to the NDRB demonstrating he wa s entitled to such representation.

Issue 4: ( ) . The Applicant has indicated he has paid all fines and served as a model probationer for the past three and a half years. He has provided no documentation of post service conduct for the NDRB’s consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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 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 NDRB reviews. 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 NDRB 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.
While the NDRB applauds the Applicant’s post service efforts, the evidence of post-service conduct was not sufficient to warrant an upgrade. To warrant an upgrade the Applicant’s post service 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 NDRB determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process , the NDRB found the discharge was proper and equitable with the exception as noted in Issue 2. However, once again, it was determined this was not prejudicial to the Applicant or the outcome of the discharge.


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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