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Decision Text

NAVY | DRB | 2010_Navy | ND1000801
Original file (ND1000801.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20100127
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630605 [COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19910814 - 19920630     Active:            19920701 - 19940606
                  19960119 - 19960508

Period of Service Under Review:
 Date of Current Enlistment: 19960509     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970610      Highest Rank/Rate: ENFN
Length of Service : Y ear s M onth s 0 2 D a ys
Education Level:        AFQT: 47
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.0

Awards and Decorations ( per DD 214):      USCGSOR

Periods of UA /C ONF :

NJP :

- 19970501 :      Article 80 : Attempts; 2 specifications
          Specification 1: In that the Applicant did, a t Sears Department Store, Norfolk, VA, on or about 2 Feb ruary 19 97, attempt to purchase a pager valued at $ 160 . 00 without sufficient funds in his checking account.
         Specification 2: In that the Applicant did, at Sears Department Store, Norfolk, VA, on or about 2 February 1997, attempt to purchase a shaver valued at $ 63.00 without sufficient funds in his checking account.
         Article : Unauthorized Absence; In that the Applicant did, on or about 14 March 1997, without authority, absent himself from his organization, PCD Bataan, Training Center, Norfolk, VA, and did remain absent until on or about 17 March 1997.
         Article 123a : Making, drawing, uttering checks without sufficient funds; 3 specifications
         Specification 1: In that the Applicant did, on or about 23 January 1997 , with intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make and utter to Sears Department Store, Virginia Beach, VA, a certain check upon Atlantic Fleet Federal Credit Union knowing that he did not or would not have sufficient funds in or credit with such credit union for the payment of the check upon its presentment.
          Specification 2: In that the Applicant did, on or about 25 January 1997, with intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make and utter to Sears Department Store, Virginia Beach, VA, a certain check upon Atlantic Fleet Federal Credit Union knowing that he did not or would not have sufficient funds in or credit with such credit union for the payment of the check upon its presentment.
          Specification 3: In that the Applicant did , on or about 3 February 1997, with intent to deceive and purport to pay an obligation, to wit: an installment payment, wrongfully and unlawfully make and utter to Best Way, Norfolk, VA, a certain check for the payment of money upon Atlantic F leet Federal Credit Union, knowing that he, did not or would not have sufficient funds in or credit with such credit union for the payment of the check in full upon its presentment.
          Article 134: Dishonorably failing to pay debt; In that the Applicant , being indebted to Rent-to-Own/Best Way, Norfolk, VA, in the sum off $ 1 , 742.41 for a four piece Ashley bedroom set, Thomasville mattress, and Pioneer stereo system, which amount became due on or about 1 March 1997 to 5 April 1997, did dishonorably fail to pay said debt.
         Article 134 : Altering p ublic record ; In that the Applicant did, sometime between 1 March 1997 and 7 April 19 97, willfully and unlawfully alter a public record, to wit: By altering a certain U.S. Navy Leave and Earnings Statement (LES), changing the “period covered” and “ social security number ” , and offereing the said LES as proof of his income and social security number to Tidewater Motor Credit, Chesapeake, VA.
          Awarded: Suspended:

S CM :    SPCM:    C C :

- 19970421 :       Offense: Insufficient Funds; 3 Specifications
         Sentence : Confinement (60 Days) , $ 150.00 Fine plus Court Cost , Commu nity Service Suspended: 60 days confinement for 24 months.

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 12 December 1997, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 s 123a ( Making, drawing, uttering check without sufficient funds ), 134 (Dishonorably failing to pay debt), and 134 (Altering public record).


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

Applicant’s Issues

 1.       The Applicant wants to receive the GI Bill money for college.
2.       The Applicant wants to receive v eterans disability benefits.
3.       The Applicant contends he would reenlist in the military if given the opportunity.
4 .       The Applicant believes his discharge was inequitable because he called to let his command know he had misplaced his orders and forgot his report date, but still received NJP and was discharged under other than honorable conditions for reporting late.

Decision

Date: 20 1 1 0310             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 included non-judicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 80 ( Attempts , attempted to purchase items with out sufficient funds in bank account ) , Article 86 ( Unauthorized Absence, 19970314 - 19970317) , Article 123a ( Making, drawing, uttering check without sufficient funds; 3 Specifications), Article 134 ( D ishonorably failing to pay debt), and Article 134 ( Altering p ublic record) . When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Non-decisional) The Applicant wants to receive GI Bill money for college. T he U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board (NDRB) . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Non-decisional) The Applicant wants to receive v eterans disability benefits. T he VA determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement , or law , that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief.

: (Non-decisional) The Applicant contends he would reenlist in the military if given the opportunity. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Neither a less than fully honorable discharge nor an unfavorable reentry (RE) code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant believes his discharge was inequitable , because he called to let his command know he had misplaced his orders and forgot his report date , but still received NJP and was discharged under other than honorable conditions for reporting late. Based on the date provided by the Applicant, t his violation of Article 86 of the UCMJ occurred during his first enlistment , from which he was honorabl y discharge d . The NDRB does not consider or review service from previous enlistments when determining whether to upgrade a discharge. T he Board complete d a thorough review of the period of service from 19960509 to 19970610 and the circumstances that led to the Applicant’s discharge and the discharge process . During this period, the Applicant received a civilian conviction for uttering checks with

intent commit fraud , and NJP for violations of A rticles 80, 86, 123a, and 134. Based on the se offenses committed by the Applicant, his command administratively processed him for separation, notifying him of separat ion for misconduct due to civil conviction and misconduct due to commission of a serious offense. Based on the frequent occurrence and serious nature of the offenses, the NDRB found the Applicant's discharge proper and equitable. 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 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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