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NAVY | DRB | 2010_Navy | ND1000797

Original file (ND1000797.rtf) Auto-classification: Denied

ex-OSC, USN

Current Discharge and Applicant’s Request

Application Received: 20100201

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)        19901018 - 19910714     Active:          19910715 - 19950702
                                             19950703 - 20000611
                                             20000612 - 20040505

Period of Service Under Review:
Date of Current Enlistment: 20040506     Age at Enlistment:
Period of E nlistment : 3 Years Extension
Date of Discharge: 20070504      Highest Rank/Rate: OSC
Length of Service : Y ear s M onth s 29 D a ys
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.8 ( 4 )      Behavior: 4.0 ( 4 )        OTA: 4.3

Awards and Decorations ( per DD 214):      (7) (2) (4) (5) (2) AFEM (2) (3) (2) CGMUC, CGSOR, ESWS

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

CC:

- 20070213:      Offense: Attempt to Illegally Obtain a Document from Department of Motor Vehicles
                  Forgery of a Public Record
                  Forgery or Alteration of Automobile Registration
                  Uttering a Forged Public Record
                  Possession of a Vehicle or Vehicle Part with an Altered Identification Number                    Receiving Stolen Property
         Sentence: NFIR

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

                  Remarks, should also include the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910715 UNTIL 040505 ”

The NDRB will recommend to the Commander, 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:          Rehabilitation/Treatment:                 Criminal Records:
         Personal Documentation:          Community Service:                References:
         Department of VA letter:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until 10 June 2008, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 123 , Forgery .

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.       Applicant contends he was never a suspect in the case and so wants to be reinstated to pay grade E-8 with all time lost and pay credited to his permanent and financial records. In addition, he requests to be eligible for promotion to E-9 (OSCM) for time and rate purposes.
2.       Applicant contends he was the victim in this case, not a suspect , and t herefore requests his discharge be upgraded to H onorable.
3.       Proven track record as a top performer, dedication, and loyalty to the Navy warrants consideration for his discharge to be upgraded to Honorable.

Decision

Date: 20 1 1 0324             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 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 did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violation of the Uniform Code of Military Justice (UCMJ) . However, the Applicant received a civilian conviction for the following offenses : (1) Attempt to Illegally Obtain a Document from Department of Motor Vehicles, (2) Forgery of a Public Record, (3) Forgery or Alteration of Automobile Registration, (4) Uttering a Forged Public Record, (5) Possession of a Vehicle or Vehicle Part with an Altered Identification Number, and (6) Receiving Stolen Property. Based on the Applicant’s civil conviction , his command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request a n Administrative Board.

: (Non - decisional) The Applicant contends he was never a suspect in the case and so wants to be reinstated to pay grade E-8 with all time lost and pay credit ed to his permanent and financial records. In addition, he requests to be eligible for promotion to E-9 (OSCM) for time and rate purposes . This issue does not serve to provide a foundation upon which the NDRB can grant relief . The Board has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Neither does it have jurisdiction over the reinstatement of pay, rank, or promotion eligibility. Concerns regarding these matters can be addressed to the Board for Correction of Naval Records. Regulations limit the NDRB ’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . T he Applicant contends he was the victim in this case, not a suspect , and t herefore, he requests his discharge be upgraded to H onorable. Documentation found in the Applicant’s service record indicates that on 13 February 2007, he was found guilty of six felonies in Virginia Beach Circuit Court (VBCC) . The Applicant provided documentation from the United States Department of Justice and the United States District Court verifying that t wo of the other individuals involved were identified as suspects and were subsequently convicted of conspiracy of trafficking in stolen vehicles with altered Vehicle Identification Numbers. This documentation also referred to the Applicant as a victim rather than a suspect or co - conspirator and ordered that the two individuals who were convicted pay him restitution. Although the U . S . District Court referred to the Applicant as a victim, he provided no evidence indicating the VBCC agreed with that court’s reference to him . Neither did he provide any documentation from the VBCC indicating his conviction had been overturned. A lthough the Applicant might have unknowingly become involved in illegal activity, he was still found guilty of felony offenses in a court of law . Therefore, the NDRB concluded that his conviction in the VBCC is still valid regardless of the U . S . District Court’s reference to him as a victim. Based on th is civil conviction, his command administratively processed him for separation. The NDRB could discern no impropriety or inequity in the discharge process. Relief denied.

: (Decisional) ( ) The Applicant contends his proven track record as a top performer, dedication, and loyalty to the Navy warrants consideration for his discharge to be upgraded to Honorable. Despite a service member’s record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Service members may be separated based on civilian convictions, or actions tantamount to findings of guilt, when the same or closely related offense would warrant a punitive discharge per the Manual for Courts-Martial. Attempting to illegally obtain document s , forger y and uttering, and receiving stolen property, offenses o f which the Applicant was convicted in a civilian court, are covered under Article s 80, 123, and 134 of the UCMJ , respectively . These offenses c ould result in an unfavorable discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Based on the civilian conviction, his command chose not to pursue a punitive discharge or confinement under the UCMJ, but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant's discharge equitable and no more severe than the characterization of discharge given others in similar circumstances. 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 T herefore, 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 for additional information.

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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NAVY | DRB | 2010_Navy | ND1000797

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