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NAVY | DRB | 2010_Navy | ND1002133
Original file (ND1002133.rtf) Auto-classification: Denied
ex-ITSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100826
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)        20000817 - 20000829     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000830     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070216      Highest Rank/Rate: IT2
Length of Service : Y ear s M onth s 27 D a ys
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 3.3 ( 6 )      Behavior: 2.5 ( 6 )        OTA: 3.21

Awards and Decorations ( per DD 214):      GCM, SSDR (2) , NDSM , GWOTEM

Periods of UA /C ONF : Confinement: 20051130 - 20051218 (19 days)

NJP : NONE        S CM : NONE       CC: NONE         Retention Warning Counseling : NONE

SPCM: 1
- 20051130 :       Art icle 107 (False official statement, falsely sign official record with intent to deceive)
         Article 121 (Larceny, stole currency , $23,579.90, BAH fraud )
          Sentence : BCD CONF 24 days (20051130 - 20051218, 19 days)

Types of Documents Submitted/reviewed
Related to Militar y 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 12, effective 19 September 2005 until 18 December 2007, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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

 Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Decisional Issues: The Applicant seeks clemency, contend ing that his characterization of service at discharge was inequitable as his misconduct was an isolated incident in what was otherwise outstanding military service.

Decision

Date: 20 1 1 1214            Location: Washington D.C .        R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts, as stated in a court-martial, are presumed by the NDRB, to be established facts. As such, the Applicant’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant’s service record indicates he entered military service at age 17 (with parental consent) on a four-year enlistment contract with a twelve - month extension for guaranteed training as an Information Systems Technician and a $5,000.00 bonus. The highest rank achieved by the Applicant during his enlistment was Petty Officer Second Class (E-5) . The Applicant’s record of service includes no retention-counseling warnings or nonjudicial punishments (NJP) for any violations of the Uniform Code of Military Justice (UCMJ). However, the Applicant’s service record documents a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 30 November 2005 . The Applicant was subject to trial f or violation of Article 107 (False o fficial s tatement) and Article 121 (Larceny - $23,579.90 in Housing Allowance Payment Fraud). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial process. Given the facts of the case, the Special Court - Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 24 days . The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final Bad Conduct Discharge was effected on 16 February 2007 .

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate future employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities. Regulations limit the NDRB’s review solely to a determination of clemency based on matters of equity of a discharge when considering a change to a punitive Bad Conduct Discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant seeks clemency, contend ing that his characterization of service at discharge was inequitable as his misconduct was an isolated incident in what was otherwise outstanding military service. The Applicant’s service record documents a period of service of approximately 2 years and 7 months of active honorable service prior to committing fraud upon the government for improper housing allowances and other allowances . The Applicant openly admitted that he purposefully defrauded the government in order to receive a greater allowance to pay bills that resulted from his marriage. The Applicant had many opportunities to correct his fraudulent pay status over a period of approximately 15 months. Violation of Article 121 (Larceny - of military property greater than $500.00 value) is considered a serious offense by the UCMJ , punishable by punitive discharge (Bad Conduct Discharge or Dishonorable Discharge) and confinement for up to 1 0 years . The Applicant’s misconduct documents a 1 5 - month period of intentionally defrauding the government in order to profit for himself and his family and demonstrated a general failure to conform to military rules and regulations. Due to the Applicant’s refusal to conform to the expected conduct of a United States Sailor , coupled with the need to ensure good order and discipline of the service, the Command referred the larceny and false official statement to a trial by Special Court - Martial. The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge and confinement for a period of 24 days.
The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate misconduct of the nature specified. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline. The documented false official statement (BAH a pplication) and the intended larceny, coupled with the Applicant’s general contempt for good order and discipline , is not minor misconduct and supports the findings of the court - martial in awarding a Bad Conduct Discharge. The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the short period of the Applicant’s honorable service, coupled with the extensive value of the misconduct , the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; it was, and remains, a proper reflection of the Applicant’s service and reason for discharge. As such, relief in the form of clemency is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency is not warranted. Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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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