ex-AE3, USNR (TAR)

                  Current Discharge and Applicant’s Request

Application Received: 20090309
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:   NONE       Active:

Period of Service Under Review:
Date of Enlistment:  19940225     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  19991123 Highest Rank/Rate:  AE3
Length of Service:  Inactive:   Year(s)     Month(s)   23 Day(s)
                                 Active:    Year(s)     Month(s)   06
Day(s)
Education Level:       AFQT:  43
Evaluation Marks:      Performance:  3.4 (2) Behavior:  2.2 (2)     OTA:
3.30

Awards and Decorations (per DD 214):    OSR Pistol

Periods of UA/CONF:

NJP:
    - 19950505:  Article 121 (Larceny and wrongful appropriation)
      Article 130 (Housebreaking)
            Awarded:     Suspended:


SCM:            SPCM:

CC:
    - 19990727:  Offense:  Grand theft and scheme to defraud
                Sentence:  Ordered to enroll in pretrial intervention
                        program,  $2,500 in restitution, perform 50 hour of
                        community service

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 Representation:
      From Congress member:
                    Other Documentation:

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

                             Applicant’s Issues

1.  Applicant claims his discharge is inequitable and is based on an
isolated civilian incident.

                                  Decision

Date:  20090821          Location:  Washington D.C.
Representation:

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

                                 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 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 reflects one NJP for violations of the
Uniform Code of Military Justice, Article 121 (larceny and wrongful
appropriation) and Article 130 (housebreaking).  In addition, the Applicant
had two civilian charges (grand theft and scheme to defraud) to which the
Applicant admitted guilt to the arresting police officer and provided a
written admission.  Although he may not have been convicted of the offense
in a court of law (no further information), the Applicant was ordered by
the court to enroll in a pretrial intervention program and pay a $40.00
fine.  Later, the Applicant was ordered to pay $2500.00 in restitution and
performs 50 hours of community service.

: (Decisional) ()  .  The Applicant contends his discharge was inequitable
due to the fact it was based on an isolated civilian incident for which he
was accused but not convicted.  The Applicant freely gave a written
statement to civilian authorities about his involvement in a refund scam
totaling over five thousand dollars at a local business where he was
employed.  For the Applicant’s edification, the discharge narrative
“commission of a serious offense” does not require adjudication by civilian
conviction; however, the offense must be substantiated by a preponderance
of evidence.  The Navy is within its authority to pursue an administrative
discharge based on the Applicant’s confession and his enrollment in a
pretrial intervention program in order to escape a formal conviction—facts
that amount to a preponderance of evidence.  It’s the Boards opinion that
the charges preferred in a civilian court were egregious enough to warrant
an administrative separation from the Navy in order to maintain good order
and discipline.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board found
By a unanimous vote of 5-0, the Board determined the characterization of
service received, General (Under Honorable Conditions), and the narrative
reason for the discharge, Misconduct, shall remain as issued considering
the length of service and the UCMJ violations involved.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his/her discharge.  The Applicant
is directed to the Addendum, specifically the paragraphs titled Post-
Service Conduct.

                          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.

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
and wrongful appropriation) and Article 130 (Housebreaking).
                  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 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.  There are veteran's organizations, such as the American
Legion and the Association of Service Disable Veterans, 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 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 U.S Department of Veterans Affairs (VA) 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 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 Board for Correction of Naval Records (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 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.

Post-Service Conduct:  The NDRB is authorized to consider post-service
factors in the recharacterization of a discharge.  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 Board reviews.  Documentation
to 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;
attendance or completion of higher education (official transcripts); 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.

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