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NAVY | DRB | 2009_Navy | ND0901378
Original file (ND0901378.rtf) Auto-classification: Denied

ex-AM2, USN
Current Discharge and Applicant’s Request
Application Received: 20090423
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)        19990519 - 19990614     Active:   19990615 – 20021217 HON

Period of Service Under Review:
Date of Enlistment: 20021218     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080724      Highest Rank/Rate: AM2
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 3.6 ( 9 )      Behavior: 2.6 ( 9 )        OTA: 3.25

Awards and Decorations ( per DD 214):      (2) (2)

Periods of C ONF : 20080508 – 2008 0713 (67 days)

NJP:
- 20070718 :       Article 90 ( Willful ly d isobey ing a s uperior o fficer )
         Awarded : Susp ended:
S CM :

SPCM:
- 20080508 :       Art icle 107 (False official statement - 3 specifications )
         Article 121 (Larceny - 2 specifications )
         Sentence : RIR CONF 85 DAYS FOP

C C : [From Evaluation dated 18 March 2004]

- 20031229 :       Violation of vehicle code VC23152(B) ( Driving Under Influence of Alcohol or Drugs )
         Sentence : 3 yrs Probation; 5 days in Jail; Fine $1,760; complete appropriate program within 180 days
Retention Warning Counseling : NFIR

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 19990615 TO 20021217 ”
         “ 20080508 – 20080713 (67 days) ”

The NDRB will recommend to the C ommander, 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:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation : State of Indiana (County of Decatur) Paternity Court papers, child’s Birth certificate

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 90 (Willful ly disobey a Superior Officer) , Art icle 107 (False official statement) and Article 121 (Larceny).




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

Applicant’s Issues

 1. Seeks a career in commercial aviation.
2. Wants his conviction overturned, criminal record cleared, reinstatement of rank, and pay records reviewed.
 3. Believes his discharge to be u njust .

Decision

Date : 20 0 9 0706    Location: Washington D.C .      R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (SERIOUS OFFENSE).
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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 90 (Willful ly disobey ing a s uperior o fficer) ; one special court-martial (SPCM) for violations of the UCMJ: Art icle 107 (False official statement , 3 specifications: false DD Form 1351-2 Travel Vouchers (2x) and false Dependency Application/Record of Emergency Data ) and Article 121 (Larceny , 2 specifications: steal ing $12,976.00 in basic allowance for housing (BAH) and steal ing $1,502.84 in Dependent Travel Pay ); and one civilian conviction for d riving under the influence of alcohol or d rugs , which was extracted from a personal evaluation dated 18 March 2004. Based on the offenses committed by the Applicant, command administratively processed for separation. When processed for a dministrative s eparation, the Applicant waived rights to submit a written statement and request an Administrative Board, and elected to consult with qualified counsel.

: (Nondecisional) The Applicant contends his discharge is preventing him from pursuing a career in commercial aviatio n. 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.

Issue 2: (Nondecisional) The Applicant is requesting his conviction be overturned, criminal record cleared, reinstatement of rank, and pay records reviewed. The NDRB does not have the authority to grant relief of this request. As noted above, the NDRB is limited to examining the propriety and equity of a member’s discharge.
Issue 3 : (Decisional) ( ) . The Applicant contends his discharge, based on a conviction at a SPCM , was unjust because he had an illegitimate dependent child (but didn’t know “ where he was or how to contact the mother ” ) , and thus , was justified in receiving government funds for a dependent. The Applicant provided evidence of the paternity test proving he was the father of the illegitimate child. During an NDRB review , relevant and material facts stated in a court-martial specification are presumed t o be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited an upgrade. In the Trial Counsel’s letter of 8 May 2008 (Results of Trial ICO [Applicant] ) , the Applicant pled guilty and was found guilty of the specifications noted above. The charges and specifications involved t he Applicant ’s knowingly deceiv ing the U.S. Government by falsely declaring his ex-wife, not his illegitimate child, as a dependent for over four years after his divorce in order to o btain allowance and payment through travel vouchers for household goods shipment reimbursement and living expense reimbursement (B asic Allowance for Housing with dependents). In his application to the NDRB, the Applicant claims he was eligibility for the allowance that he improperly received due to an illegitimate son; however, the Board noted, per official records, that he knowingly falsified official documents (i.e., he did not use his son as justification for the allowance) to attain the allowance. The Board opined that the Applicant is now attempting to use his known illegitimate child to justify his past misconduct—despite his plea of guilt, finding of guilt, and all other established facts of his court-martial. Relief Denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

 The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



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 Association of Service Disable 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 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 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.

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 certificates (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 at 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 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

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