Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100151

Original file (ND1100151.rtf) Auto-classification: Denied

ex-ISSN, USN

Current Discharge and Applicant’s Request

Application Received: 20101025

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)        NONE      Active:

Period of Service Under Review:
Date of Current Enlistment: 20051216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081105      Highest Rank/Rate: ISSN
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 30 D a y ( s )
         Active   Y ear( s ) M onth( s ) 30 D a y ( s )
Education Level:        AFQT: 77
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00
Awards and Decorations:

Periods of UA /C ONF :

NJP :     S CM :             SPCM:             Retention Warning Counseling :

C ivilian Conviction :
- 200 8 1 016 :      Offense: Criminal Trespass, Impersonating a Public Servant, Unlawful Restraint, and Terroristic Threats with Intent to Terrorize
         Sentence: 3 months house arrest and 5 years probation

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 23, effective 12 June 2008 until 9 November 2009, 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 134 .

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

Applicant’s Issues

1.        Applicant seeks an RE code and discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant seeks a discharge upgrade to obtain veteran education benefits.
3 .        Applicant contends his discharge was improper/inequitable and not in accordance with Naval Military Personnel Manual ( MILPERSMAN ) requirements.
4.       Applicant contends his in-service performance and post-service achievements warrant consideration for a discharge upgrade.
Decision

Date: 20 1 2 02 09             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 Applicant identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and proprie ty. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP), or trial by courts-martial. The record did reveal that the Applicant was arrested by civil authorities on or about 15 Nov 2007 relating to offenses the Applicant committed while self-investigating the theft of his cell phone and personal property. Civil ian police documents within the record indicated the Applicant had wrongly trespassed (criminal), impersonated a police officer, handcuffed (restrained) two males and falsely imprisoned them, and made threats of violence to them (to include a threat to shoot them ). The Applicant was charged with b urglary , c rim inal trespass, f alse i mprisonment , u nlawful restraint , impersonat ing a public official , terroristic threat , and kidnapping . Based on the offenses committed by the Applicant, command administratively processed for separation. The record contains two sets of NAVPERS 1910/31 administrative board notification documents, dated 30 Jul 2008 (signed by a command representative on 8 Sep 2008) and 23 Sep 2008 (signed by a command representative on 23 Sep 2008). However, neither set of documents contained the Applicant’s initials or signature indicating whether he elected to exercise or waive his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The record also contained copies of two U . S . Postal Service (USPS) forms: a return address label with the Applicant’s command address and a USPS F orm PS 3811 (Domestic Return Receipt) , which are typically u s ed to mail administrative separation notification to R eservists residing outside a 50 - mile radius or who can not otherwise be contacted and advised in person. However, the PS3811 in the record contained no markings for registered or certified mail service or a date stamp that would indicate the date when the command mailed the notification package. On 16 Oct 2008, t he Applicant was sentenced by a civil court based on findings of guilt for criminal trespass, impersonating a public servant, unlawful restraint, and terroristic threats w/intent to terrorize another . On 5 Nov 2008, the Commanding Officer , Nav y Operational Support Center Fort Dix, NJ sent a memorandum to the Commander, Navy Personnel Command ( NPC ) informing him of the administrative separation of the Applicant on 1 Nov 2008 with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense), along with the applicable SPD code JKQ (no administrative board entitlement) and an RE-4 reenlistment code. On 4 Dec 2008, NPC sent a message to the Applicant’s command that directed the Applicant be separated with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense) , along with the applicable SPD code H KQ (administrative board waived ) and an RE-4 reenlistment code .

: (Nondecisional) The Applicant seeks an RE code and discharge upgrade 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.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable and not in accordance with MILPERSMAN requirements. Per the MILPERSMAN, members may be separated based on commission of a serious military or civilian offense when: “(1) specific circumstances of the offense warrant separation; and (2) the offense would warrant a punitive discharge per reference (a), appendix 12 for same or closely related offense. Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, offense must be substantiated by a preponderance of evidence (e.g., copy of police record, Naval Criminal Investigative Service (NCIS) investigation, etc.). When offense requires mandatory processing or the C ommanding O fficer (CO) believes circumstances surrounding the offense warrants an Under Other Than Honorable (OTH) discharge per MILPERSMAN 1910300, the Administrative Board Procedure (MILPERSMAN 1910-404) shall be used . ” In the Applicant’s case, the Nov 2007 police report met the preponderance of the evidence requirement. However, the subsequent civil court findings of guilt y for criminal trespass, impersonating a public servant, unlawful restraint, and terroristic threats w/intent to terrorize another provided adequate proof to proceed with the Applicant’s administrative separation . For reasons unclear to the NDRB , the Applicant’s command prepared two administrative separation notification packages for commission of a serious offense (administrative board procedure notification dated 30 Jul 2008 and signed by a command representative on 8 Sep 2008 ; and administrative board procedure notification dated 23 Sep 2008 and signed by a command representative on 23 Sep 2008) . From the available documentation, the NDRB could not determine the circumstances surrounding the Applicant’s notification (i.e. , the Applicant refused to respond to command attempts to contact him; the Applicant refused to accept and return notification and election of rights documents sent via mail and/or facsimile; or the member was not notified properly by the command).

MILPERSMAN section 1910-704 states that when a member is being separated by reason of misconduct (commission of a serious offense) , then the Separation Authority (SA) is the General Court - Martial Convening Authority (GCMA) or higher when the administrative board procedure is used and the member waived the board (which would also include refusal to respond to administrative separation notification or in the instance a member could not be otherwise located/contacted). MILPERSMAN section 1910-708 states “that when a member waives the right to an administrative board or when using notification procedures, the command should assign characterization for the primary reason for separation and should normally be commensurate with the least favorable reason for processing” (i.e. , Under Other Than Honorable Conditions for the administrative board administrative separation procedure). Additionally, MILPERSMAN 1910-708 states to “forward all cases where administrative board procedures are used, and the administrative board was waived, to the GCMA or higher for action . ” After examination of the records, the NDRB determined that the Applicant’s command was not authorized as the Separation Authority to administratively separate him locally (due to the a dministrative b oard notification procedure) . Instead, NPC was the appropriate Separation Authority , which therefore explain s the 4 Dec 2008 message from NPC to the Applicant’s NOSC (in response to the 5 Nov 2008 memorandum to NPC ) directing that the Applicant be separated with an Under Other Than Honorable Conditions discharge. However, since the Applicant was separated from service locally by the NOSC Commanding Officer in November, and a fter considering all the available evidence, the NDRB determined that the Applicant’s administrative separation for commission of a serious offense was proper but not equitable . Acc ordingly, the NDRB found that the Applicant’s issue warranted partial relief with an upgrade to General (Under Honorable Conditions). Full relief to Honorable was not granted because of the serious nature of the misconduct within the record that warrant ed the Applicant’s separation from service . Partial relief warranted.

Issue 4 : (Decisional) ( ) . The Applicant contends his in-service performance and post-service achievements warrant consideration for a discharge upgrade. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. I mpersonating a public servant, unlawful restraint, and terroristic threats w/intent to terrorize another are offense s that can result in processing for administrative separation regardless of grade , performance, or time in service. This usually results in an unfavorable characterization of discharge . The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement, personal attorney petition memorandum, county court summary, letters of personal reference, and certificates of training and education as evidence of post-service accomplishments.

Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant ’ s DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . C ompletion of these items alone , however , does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. 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, the Board found the discharge was proper but not equitable. 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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NAVY | DRB | 2011_Navy | ND1100151

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