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NAVY | DRB | 2010_Navy | ND1001271
Original file (ND1001271.rtf) Auto-classification: Denied

ex-HM3, USN
Current Discharge and Applicant’s Request
Application Received: 20100420
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)        19951128 - 19960220     Active:   19960221 - 20010219 HON

Period of Service Under Review:
Date of Current Enlistment: 20010220     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050701      Highest Rank/Rate: HM2
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 3.2 ( 5 )        OTA: 3.28

Awards and Decorations ( per DD 214):      Rifle (2) (3)

Periods of UA /C ONF :

NJP :

- 2005041 8 :       Article 130 (Housebreaking) , 4 specifications
         Article 121 (Wrongful appropriation), 4 specifications
         Article 92 (Failure to obey order or regulation), 3 specifications
         Awarded : Susp ended:

S CM :    SPCM:    C C :     

Retention Warning Counseling :

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 960221 UNTIL 010219 ”
         “ MISCONDUCT (SERIOUS OFFENSE) ”
        
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 11, effective 26 April 2005 until 11 June 2008, 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 92, 121, and 130.



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

Applicant’s Issues

 1.       Nondecisional issues: The Applicant seeks a change in his re-entry code (RE-4) in order to help facilitate reentry into the Navy .

2.       Decisional issues : The Applicant contends that he was young and immature at the time of his misconduct and has since matured and his post - service achievements bear this out; as such, he seeks an upgrade in the characterization of his serv ice at discharge to Honorable.

Decision

Date: 20 1 1 0628            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 identified one issue for the NDRB’s consideration; additionally , the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant did provide additional documentary evidence for the NDRB’s consideration to include post-service college transcripts and community service activities .

The Applicant’s record of service contains a nonjudicial punishment for violations of the Uniform C ode of Military Justice (UCMJ) as follows: Article 92 ( F ailure to obey lawful orders or regulations , 3 specifications ) , Article 121 ( Wrongful appropriation, 4 specifications) , and Article 130 ( Housebreaking ). Based on the serious nature of the misconduct, the Commander did not believe retention was in the best interest of the service and proposed separation. The NDRB reviewed the Applicant ’ s administrative separation package; the Applicant was notified for separation pursuant to Article 1910-142 (Misconduct- Commission of a Serious Offense) of the Naval Military Personnel Manual (MILPERSMAN). T he Applicant elected to consult with qualified legal counsel and requested that his proposed discharge action be presented to an administrative hearing board.

On 31 May 2005, a discharge hearing board was convened for the purpose of considering the pertinent facts relating to the proposed discharge action of the Applicant. The Applicant was present at the board and was represented by legal counsel. After reviewing the evidence of record and hearing testimony for both the government and the Applicant, the hearing board concluded, by a vote of 3-0, that a preponderance of the evidence supported a finding that misconduct had occurred and that separation was warranted. However, by a vote of 3 to 0, the hearing board members recommend ed a discharge characterization of service of General (Under Honorable Conditions). As such, the Applicant was separated locally under the authority of Article 1910-700 of the MILPERSMAN. He received a General (Under Honorable Conditions) characterization of service and a narrative reason for separation of Misconduct (Serious Offense) . Finally, the Applicant received an RE-4 reentry code on his DD F orm 2 14 – no t recommended for reenlistment.

Non-decisional Issues: The Applicant seeks a n upgrade in the characterization of his service and a change in his re-entry code (RE-4) in order to facilitate reentry into the Navy . The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities . T he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is specifically not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlis tment. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.



Since the NDRB is not authorized to change the reentry code as requested , t he Applicant ’s method of recourse is to address this issue by petition to the Board for Correction of Naval Records (BCNR) using standard DD Form - 149. When requesting this action , the Applicant should provide as much documentation regarding the situation as possible. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm

( Decisional Issue ) ( ) . The Applicant contends that he was young and immature at the time of his misconduct and has since matured and his post - service achievements bear this out; as such, he seeks an upgrade in the characterization of his service at discharge to Honorable. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial. The Applicant’s service record formally documents a determination of guilt for violation of Articles 92, 121 , and 130 at a nonjudicial punishment (Captain’s Mast) held on 18 April 2005 . In accordance with the Manual for Courts-Martial, violation of these Articles of the UCMJ warrant punitive discharge and confinement for up to 5 years, if adjudicated at trial by court-martial; thus, the violations met the requirement of the MILPERSMAN for administrative separation due to the commission of a serious offense. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct (commission of a serious offense). As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied.

Based on the seriousness of the offense committed, coupled with the Applicant’s integrity violation and his blatant disregard for Navy Core Values - conspiring with, and stealing copies of exams and answer keys from the BOOST program faculty instructors in order to cheat on exams - the Separation Authority determined that the misconduct warranted separation under other than honorable conditions. The Applicant exercised his right to request an administrative hearing board ; ultimately, the board recommended separation with a General ( U nder Honorable Conditions) characterization of service. The Separation Authority did not choose to pursue a review and final determination by the Secretary of the Navy in order to discharge the Applicant with an Under Other Than Honorable Conditions characterization of service. As such, the Applicant retained a General (Under Ho norable Conditions) discharge .

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptab le conduct and performance for N aval P ersonnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Based on the Applicant’s record of service , the NDRB determined the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct and performance of duties , as evidence d by his egregious misconduct, did outweigh the positive aspects of his service record. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the applicant’s service at discharge. The NDRB’s vote w as unanimous that an upgrade is by no means appropriate and that relief is not warranted; therefore, the character of the discharge shall not change. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that 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 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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