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NAVY | DRB | 2010_Navy | ND1001899
Original file (ND1001899.rtf) Auto-classification: Denied

ex-BM3, USN
Current Discharge and Applicant’s Request
Application Received: 20100727
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       GOOD OF THE SERVICE

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20010629 - 20011 0 14     Active:   20011 0 15 - 20060202 HON

Period of Service Under Review:
Date of Current Enlistment: 20060203     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200808 0 7      Highest Rank/Rate: BM3
Length of Service : Y ear s M onth s 25 D a ys
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 2.8 ( 4 )      Behavior: 2.3 ( 4 )        OTA: 2.57

Awards and Decorations ( per DD 214):      NDSM SSDR (2) AFEM GWOTEM GWOTSM

Periods of UA : 20071001 - 2 00 7 1025 (25 days), 20080318 - 20080320 (3 days), 20080711 - 20080713 (3 days)

NJP : NONE        S CM : NONE       SPCM:             Retention Warning Counseling : NONE
C C :
- 20080325 :       Offense: Accessory to Vandalism (details NFIR)
         Sentence : Probation (3 years), Probation Fines, Court Fees
         * EXPUNGED [ San Diego CA, County Superior Court , 20100601 ]

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:
         Block 18, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE SERVICE 20011015 to 20060202. ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT – CIVIL CONVICTION ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 11 June 2008 until 9 November 2009, 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 109 .
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 seeks discharge and RE- c ode upgrade s to reenlist in the U.S. Armed Forces .
2.       Applicant contends his discharge warrants upgrade due to a post-service Superior Court ruling that expunged a charge against him.

Decision

Date: 20 1 1 11 29             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 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 Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did reflect several periods of lost time (1-25 Oct 2007; 18-20 Mar 2008; 11-13 Jul 2008); however, the Board could not determine the details nor disposition of each period. The record also reflect ed at least one civilian conviction (25 Mar 2008) for accessory to vandalism (Jan 2008) and violation of a restraining order . Comments in the Applicant’s last evaluation and counseling report (dated 1 Sep 2007 - 15 Jun 2008) state he was subsequently arrested on 17 May 2008, but no details were provided surrounding the arrest. Based on the offense s committed by the Applicant, as evidenced by his arrests and conviction in civil court, his command administratively processed him for separation from the Navy . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board or a General Court-Martial Convening Authority review . However, the Applicant’s DD Form 214 has a separation code of HKB , which indicates he waived his right to an administrative separation board. The Applicant was separated from the Navy on 7 Aug 2008 with an Under Other Than Honorable Conditions discharge due to Misconduct (Civil Conviction).

: (Nondecisional) The Applicant seeks discharge and RE-code upgrade s to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his discharge warrants upgrade due to a post-service Superior Court ruling that expunged a charge against him. In reviewing discharges, the Board 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 Board completed a thorough review of the circumstances surrounding the Applicant’s discharge to ensure his discharge met the pertinent standards of equity and propriety. The Applicant submitted documentation that reflected a 1 Jun 2010 CA Superior Court dismissal of a previous conviction that resulted in expung e ment from the Applicant’s civil record, termination of his probation, and deletion of a protective order. After rev i ewing the available evidence, the Board determined that although the Applicant’s conviction was dismissed and expunged from the record, it did not mean he did not commit the infraction s for which he was initially charged and convicted. Moreover, documentation in the record references more than one arrest (Jan 2008, vandalism; May 2008, arrest for circumstances undetermined; and date/circumstances undetermined regarding a civil conviction involving violation of a restraining order). After detailed examination and deliberation, the B oard found the evidence available did not completely rebut the presumption of regularity in the Navy’s administrative separation of the Applicant due to misconduct (civil conviction) . Accordingly, the Board found this issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, and the documentation submitted by the Applicant , 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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