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NAVY | DRB | 2011_Navy | ND1100129
Original file (ND1100129.rtf) Auto-classification: Denied

ex-QMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20101019
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)        19990427 - 19991227     Active:   199912 2 8 - 20030528 HON

Period of Service Under Review:
Date of Current Enlistment: 20030529     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031112      Highest Rank/Rate: QM3
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.17

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :
- 20031009 :       Article 92 (Failure to obey an order, to route night orders on the 12-1700 IAW Navigation Standing order)
         Article (Larceny and wrongful appropriation, 2 specifications )
                  Specificatio n 1: Steal approximately $520 , the property of an SK1(SW) , o/o 20030910
                  Specification 2: Steal a Navy Cash Card , approx value $25, the property of an SK2 , o/o 20030921
         Awarded : (to E-3) (60 days) Susp ended:

S CM :             SPCM:

C ivil Arrest :

- NFIR :   Offense: Solic it ation f or prositution from undercover San Diego police officer
         *( Extracted from Commanding Officer’s AdSep letter , dt d 20031016)
         Sentence : Pending court case

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 9 9 12 2 8 UNTIL 030528 ”
        
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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 s 92 and 121 .



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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran medical benefits.
2.       Applicant contends his original discharge on 29 May 2003 was Honorable, but that he was then issued an Under Other Than Honorable Conditions discharge on 12 Nov 2003.
Decision

Date: 20 1 2 01 19             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 . T he Board c omplete 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 one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, route night orders during the 12-1700 watch IAW Navigation Standing O rder , 27 Sep 2003 ) and Article 121 ( Larceny, 2 specifications: St ole approximately $520 cash , the property of an SK1(SW) , o/o 20030910 and stole a Navy Cash Card, approx value $25, the property of an SK2 , o/o 21 Sep 2003). The record also revealed a civilian arrest for solicitation for prostitution from a San Diego Police Department undercover officer. At the time of the Applicant’s administrative separation, the solicitation case was pending trial/disposition in civil court. The Applicant also had enlistment waivers for shoplifting and grant theft (felony) for criminal activity he committed prior to entering the Navy. Based on the offenses committed by the Applicant during this enlistment (larceny , failure to obey an order, and solicitation for prostitution) , the Applicant’s Commanding Officer elected to process him for administrative separation. When notified of administrative separation processing using the procedure on 15 Oct 2003 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . In his endorsement of the Applicant’s Administrative Separation package, t he Commanding Officer stated: “(The Applicant) has no potential for further service due to commission of serious offenses. While onboard FFG-46, (the Applicant) worked in an environment that supported personal and professional growth, yet he disregarded this opportunity and continued to demonstrate he was untrustworthy by stealing from shipmates on three occasions. The severity of his crimes and impact on good order and discipline warrants an Other Than Honorable discharge . ” The Applicant was separated from the Navy on 12 Nov 2003 ( after completing just 5 months and 14 days of his second enlistment ) with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran medical 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.
Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. Applicant contends his original discharge on 29 May 2003 was Honorable, but that he was then issued an Under Other Than Honorable Conditions discharge on 12 Nov 2003. The Applicant completed his first enlistment honorably on 28 May 2003 and was issued a certificate on 29 May 2003 signifying this achievement. He immediately re-enlisted for a two-year period but was administratively separated on 12 Nov 2003 with an Under Other Than Honorable Conditions characterization of service for the current enlistment due to Misconduct - Commission of a Serious Offense after being found guilty of violating UCMJ Articles 92 and 121 at Captain’s Mast. The discharge was proper and equitable, and the Applicant’s DD Form 214 is accurate. 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 the administrative separation 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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