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NAVY | DRB | 2009_Navy | ND0901896
Original file (ND0901896.rtf) Auto-classification: Denied

ex-ABHAR, USN
Current Discharge and Applicant’s Request
Application Received: 20090625
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)        19980623 - 19980902     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19980903     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030805      Highest Rank/Rate: ABHAN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.67

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

Periods of UA : 19990212 – 19990216 ( 4 days ), 19 9 90621 – 19 9 90624 ( 3 days ), 19990702 – 19990707 (5 days), 19991230 – 20000105 (6 days), 20000216 – 20000218 (2 days), 20001124 – 20001127 (3 days), 20010211 – 20010213 (2 days), 20010217 – 20010305 (19 days), 20010503 – 20010507 (4 days), 20010510 – 20010515 (5 days), 20010527 – 20010529 (2 days), 20010615 – 20010618 (3 days),

NJP :

- 19990923 :      Article (Absence without leave – Failure to go to appointed place of duty 19990618-19990823, 67 days)
         Awarded: Suspended:

S CM :

SPCM:

- 20010619 :      Article (Absence without leave – UA), 2 specifications
          Specification 1: 20010309 – 20010312, 3 days.
         Specification 2: 20010329 – 20030402, 3 days.
         Article (Failur e to obey order or regulation – lawful order on 20010315)
         Article (False official statements – with intent to deceive on 20001003)
         Article ( Larceny or wrongful appropriation) , 3 specifications
         Specification 1: Steal US currency valued at $850 .00 in 200007 and 200010.
         Specification 2: Steal US currency valued at $527.50 on 20000929.
         Specification 3: Steal wallet containing about $40 .00 and various ID cards in 200008.
         Article (Forgery – falsely utter check with intent to defraud in 200007 and 200010)
         Sentence: 6 MONTHS (20010619 – 20010830, 72 days) BCD
         CA’s Action: Confinement in excess of 90 days is suspended for 12 months unless sooner vacated.



C C :

- 19990303 :       Offense: Reckless driving [Extracted from NAVPERS 1070/613 dated 19990413]
         Sentence : $50 fine plus court cost in General District court (Traffic Division) Norfolk, VA.

Retention Warning Counseling: NFIR

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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 8 September 2004, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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. Post-service conduct warrants consideration .

Decision

Date: 20 10 0625             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to 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 clemency. The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave more than thirty days, 67 days); one special court-martial (SPCM) for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications: 3 days, 3 days), Article 92 (Failure to obey order or regulation), Article 107 (False official statement with intent to deceive), Article 121 (Larceny or wrongful appropriation, 3 specifications: $850.00, $527.50, and $40.00 and various identification cards), and Article 123 (Forgery, 2 specifications of falsely utter check with intent to defraud); and one civilian conviction for reckless driving. Based on the offenses committed by the Applicant, his command convened a SPCM. The Applicant pled and was found guilty of the charges noted above and was sentenced to confinement, reduction in rate to E-1, and a Bad Conduct discharge.

 Issue 1 : (Decisional) ( ) . The Applicant contends he has “spent the last six years making right” and is now a minister. The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. Along with the DD Form 293 and his statement, the Applicant provided a certificate of license as a minister and one character reference from the senior pastor of his church. Unfortunately, this is insufficient documentation to evaluate the Applicant’s post-service character and conduct. W ithout sufficient documentary evidence, the NDRB cannot form a basis of relief. 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 s (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. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

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 Disabled 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.

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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