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NAVY | DRB | 2009_Navy | ND0902607
Original file (ND0902607.rtf) Auto-classification: Denied

ex-FC3, USN
Current Discharge and Applicant’s Request
Application Received: 20090728
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030225 - 20031112     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031113     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070320      Highest Rank/Rate: FC2
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 92
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 3.0 ( 5 )        OTA: 3.03

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20060213 :      Article (Assault)
         Awarded: Suspended:

S CM :

SPCM:

C C :

- 20070318 :       Offense: Battery/simple
          Sentence : Fine/cost $240.00, jail for 5 days with 2 days credit

Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20090514
NDRB Documentary Review Docket Number:   ND09-01248
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.







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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, 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 128.

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

Applicant’s Issues
1.        The Applicant contends his CO did not have sufficient information to properly make a decision on whether to separate him.
 2.       The Applicant’s civil guilty plea was obtained in a coercive atmosphere and reflected nothing more than a desire to be released from jail and return to his ship.
3. The Applicant’s civil guilty plea was not obtained in accordance with Florida law, and under the totality of circumstances, should not be given any weight. It is unfair and inequitable to base the Applicant’s discharge on a plea obtained in violation of law and any sense of fairness or justice.

Decision
Date : 2010 0920             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

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 for o f the Uniform Code of Mil itary Justice (UCMJ): Article 128 (Assault , 1 specification) and one civil conviction for misdemeanor, simple assault. Based on the Applicant’s civil conviction , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to c onsult with a qualified counsel and submit a written statement. The Applicant was not entitled to an admin board .

: (Decisional) ( ) . The Applicant contends the commander did not have sufficient information to properly make a decision on whether to separate him. The NDRB carefully considered civil court transcripts, military records , the Applicant’s testimony , and the arguments of the Applicant’s civilian counsel . The NDRB agreed with the Applicant’s contention. The record and testimony show t he Ap plicant was never given an opportunity to tell his side of the story or to discuss the matter with anyone in his chain of command prior to separation proceedings . The Applicant was separated due to an occurrence that c ivil authorities subsequently decided not to adjudicate. The NDRB believes the command would have considered all the facts , had they been known at the time , with a potentially more favorable outcome for the Applicant. The NDRB fou nd relief to be warranted on equitable grounds.

: (Decisional) ( ) . The Applicant contends his civil guilty plea was obtained in a coercive atmosphere and reflected nothing more than a desire to be released from jail and return to his ship. Additionally, the Applicant contends his civil guilty plea was not obtained in accordance with Florida law, and under the totality of circumstances, should not be given any weight. The Applicant believes i t is unfair and inequitable to base the Applicant’s discharge on a plea obtained in violation of law and any sense of fairness or justice. The NDRB carefully considered civil court transcripts and the Applicant’s testimony with respect to this issue. The civil transcripts clearly reveal the Applicant was confused by the rushed, unfamiliar court process and should have pled not guilty due to self defense. The Appl icant initially pled no contest , which was shortly followed by a plea of not guilty as the judge determined the Applicant clearly thought he committed the act in self defense. The Applicant eventually entered a guilty plea without the aid of any legal expertise or counsel. The Applicant testified he was unaware of the immediate and destructive consequences his guilty plea would have on his naval career. The Applicant’s testimony that he pled guilty in an effort to take the most expeditious path possible to return to his ship is supported by civil court transcripts . Relief is warranted on equitable grounds.

The Applicant wished to address several matters that are non-decisional for the NDRB. While not entered as issues for this hearing, the Applicant may petition the Board for Correction of Naval Records regarding his desire to have his re-entry code and rank changed on his DD Form 214 .

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 change to SECRETARIAL AUTHORITY .


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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