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NAVY | DRB | 2010_Navy | ND1001215
Original file (ND1001215.rtf) Auto-classification: Denied

ex-HM2, USN
Current Discharge and Applicant’s Request
Application Received: 20100414
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)        19910405 - 19910505     Active:            19910506 - 19960703

Period of Service Under Review:
Date of Current Enlistment: 19960704     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000303      Highest Rank/Rate: HM2
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 4.0 ( 3 )        OTA: 3.47

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

Periods of C ONF : 23 November 1999 - 29 December 1999

NJP :     S CM :

SPCM:

- 19991123 :       Art icle (Willful dereliction in performance of dut ies ) ; six specifications .
         Specification 1: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $896.22
         Specification 2: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $928.12
         Specification 3: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $1,935.31
         Specification 4: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $2,267.89
         Specification 5: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $2,528.11
         Specification 6: Using Government Visa Card for unauthorized personal expenses and unauthorized cash advances from automatic teller machines, totaling $1,111.00
         Article 107 (False official statement)
         Article 134 (Dishonorably failing to pay just debt)
          Sentence : 90 DAYS

C C :      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 19910506 UNTIL 19960703 ”

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:                  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 18, effective 12 December 1997 until 29 March 2000,
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 , Art icle (Willful dereliction in performance of duties), Article 107 (False official statement) , and Article 134 (Dishonorably failing to pay just debt) .


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

Applicant’s Issues

 1.       Nondecisional issues: The Applicant contends that he warrants an automatic upgrade to the characterization of his service at discharge due to not having been in any legal trouble within six months of discharge.

2.       Decisional issues: The Applicant did not identify any issues relating to the equity or propriety of his discharge for consideration by the NDRB .

Decision

Date: 20 1 1 0609            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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant did not identif y any decisional issue s for the NDRB’s consideration ; however, the NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant enlisted in the United States Navy at age 19 for a four year enlistment with a 12 month extension under a guarantee for training as a Hospital Corpsman. Having honorably completed his first period on enlistment, the Applicant re-enlisted for four years on 04 July 1996. The Applicant’s period of service under review (his current enlistment contract of four years) include d no NAVPERS 1070/613 (Page 13) retention-counseling warnings , but contained a Special Court Martial conviction on 23 November 1999 for violation of the following Articles of the Uniform Code of Military Justice (UCMJ) :

•         Article (Willful dereliction in the performance of duties) - six specifications
•         Article 107 (False official statement)
•         Article 134 (Dishonorably failing to pay just debt) .

The Applicant was represented by a qualified legal defense counsel during his trial by Special Court-Martial. In accordance with the a signed pre-trial agreement (PTA), the Applicant agreed to request trial by military judge alone , waive any rights to an administrative discharge hearing, elected to plead guilty to the charges as agreed upon in a trial by judge alone, and submitted a signed, written stipulation of the facts to the court . In consideration, the convening authority agreed to withdraw the charges from trial by General Court - Martial and to adjudicate the charges at the lesser Special Court - Martial. In addition, the convening authority agreed to suspend any punitive discharge adjudged, limit any adjudged period of confinement to no more than 45 days, disapprove any fines adjudged , and to defer and then suspend an y forfeiture of pay contingent on the Applicant establishing an allotment for the maintenance of his depend e nts. Given the facts of the case and the stipulation of facts as submitted by the Applicant , the trial judge awarded the Applicant 90 days of confinement, a reduction in paygrade to E-3, and a forfeiture of $500.00 for 6 months.

The NDRB reviewed the Applicant’s administrative separation package: when notified of administrative separation processing using the notification procedure, the Applicant elected to exercise his right to consult with a qualified counsel, but waived his right to submit written matters to the Separation Authority and to request that an administrative hearing board be convened.

Besides his DD Form 293, the Applicant provided no other documentation in support of his request for consideration by the NDRB.


Nondecisional Issues. The Applicant contends that he warrants an automatic upgrade to the characterization of his service at discharge due to not having been in any legal trouble within six months of discharge. There is no requirement, or law, that grants re-characterization solely on the passage of time (six - month automatic upgrade) or for noninvolvement with civil criminal authorities. Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits or to facilitate employment opportunities. A former service member has 15 years, from the date of discharge, to petition the NDRB for consideration of an upgrade based on matters regarding either the propriety or the equity of a discharge . As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(NDRB Board Issues ) ( ) . The Applicant contends that he warrants consideration for an upgrade in the characterization of his service at discharge to Honorable by submission of his request for review; however, the Applicant did not identify any specific issues of inequity or impropriety for the NDRB’s consideration. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity and propriety to determine if any factors in this particular case merited clemency. The Applicant’s violation of Articles 92, 107, and 134 of the UCMJ each warrant punitive discharge and confinement for up to five years, if adjudged at trial by special or general court martial. Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the MILPERSMAN for separation based on the commission of a serious offense . In this specific case, when recommending administrative separation under other than honorable conditions for misconduct that was adjudicated at a trial by court martial where a punitive discharge could be adjudged, but was not, without any other charges of misconduct, Article 1910-706 requires that the Separation Authority be the Secretary of the Navy (SecNav). As such, the command forwarded their recommendation for separation with an Under Other Than Honorable Conditions characterization of service to the Commander, Naval Personnel Command for final action with the SecNav. The Separation Authority reviewed the Command’s recommendation for separation and determined that the Applicant’s documented record of service established the minimum requirements for discharge based on Misconduct due to the commission of a serious offense. The Separation Authority determined that separation in the Applicant’s case was proper; and further, that the proposed characterization of service – Under Other Than Honorable Conditions – was warranted. On 28 February 2000, the Separation Authority directed the Applicant be discharged for the reason as stated and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment. Having reviewed the facts and circumstance unique to this case, the NDRB determined that there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. As such, r elief based on propriety is denied.

After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct during the enlistment period under review , which forms the primary basis for determining the characterization of his service, reflected conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate; accordingly, relief based on matters of equity is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT . 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 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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