Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1100720
Original file (ND1100720.rtf) Auto-classification: Denied

ex-ABE3, USN
Current Discharge and Applicant’s Request
Application Received: 20110124
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)        19970923 - 19970930     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19971001     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010329      Highest Rank/Rate: ABE3
Length of Service: Y ear( s ) M onth( s ) 29 D a y ( s )
 Education Level:        AFQT: 49
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.09

Awards and Decorations ( per DD 214):     

Periods of C ONF :

Time Lost Per DD214:     I n Hands of Civil Authorities (I HCA ): 19991215 - 20000119 ( 36 days) and 20001109 - 20010329 (141 days)

NJP :

- 20001 2 23 :      Article ( Absence without leave - UA)
         Awarded: Suspended:

S CM :             SPCM:             Retention Warning Counseling :

C C :

- 20000419 :       Offense: Rape of a Child (2nd Degree) and Child Molestation (1st Degree). Arrest date 19991214.
         Sentence : (7 Jul 2000) 221 months total confinement (132 concurrent) ; all but 6 months suspended on a Special Sexual Offender Sentencing Alternative, no contact with both victims for life, pay $500 for victim assessment, provide HIV and DNA testing .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Block 13, Decorations, Medals, Badges, Citations, should read: “ARMED FORCES EXPEDITIONARY MEDAL ”
         “ 99DEC15 - 00JAN19 , 00NO V 09 - 01MAR29 ”

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 31 effective 24 January 2001 until
8 July 2001, 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 specific violation s of the UCMJ , Article 120 .
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 would like to re-enlist in the Navy.
2 .        Applicant seeks a discharge upgrade to obtain education and veteran benefits.
3 .       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 04 05             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 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 one decisional issue for the Board ’s consideration . T he 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 one nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave - UA ) . The record also indicated the Applicant received a civil conviction on 19 Apr 2000 for Rape of a child in the Second Degree (child at least 12 but under 14 years of age) and Child Molestation in the First Degree (child under 12 years of age) . The offenses were committed during Apr-Jul 1999 on underage female sisters who were cousins of his 18 year old girlfriend . Additionally, t he record reflected two periods of time lost: 15 Dec 1999 - 19 Jan 2000 ( IHCA after 14 Dec 1999 arrest , 36 days) and 9 Nov 2000 - 29 Mar 2001 ( IHCA confinement , 141 days). Based on the offenses committed by the Applicant , as evidence d by his civil court conviction , his command administratively processed him for separation , which is mandatory per the Naval Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the procedure on 10 Jan 2001 (for commission of a serious offense and civil conviction) , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 16 Mar 2001, the Commanding Officer, Transient Personnel Unit Puget Sound endorsed the Applicant’s administrative separation package stating , “(The Applicant) is being processed for Misconduct-Commission of a Serious Offense and Misconduct-Civil Conviction. Mandatory processing did not occur at his previous command, in accordance with 1910-144 (MILPERSMAN). While awaiting member’s service record, his probation was revoked due to his committing 42 parole violations. I feel he has no potential for further service and recommend discharging him with an Other Than Honorable Discharge . ” The Applicant, after serving 141 days in civil confinement, was released from civil custody on 23 Mar 2001 and then subsequently separated from the Navy the same day with an Under Other Than Honorable Conditions discharge due to Misconduct-Civil Conviction.

Issue 1: (Nondecisional) The Applicant would like to re-enlist in the Navy. 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 Board 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 education and veteran benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.


: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. 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 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 . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0800779

    Original file (MD0800779.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall HOMOSEXUAL ADMISSION.Discussion Issue 1 ().The Board reviewed the propriety and equity of the Applicant’s discharge to ensure relief was not in order based on an impropriety or inequity in the discharge process. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that Pertinent Regulation/Law A. ” Additional Reviews...

  • NAVY | DRB | 2009_Navy | ND0900081

    Original file (ND0900081.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide...

  • NAVY | DRB | 2007_Navy | ND0700196

    Original file (ND0700196.rtf) Auto-classification: Denied

    The Applicant’s service was marred by one nonjudicial punishment proceeding for violation of Article 112a (Wrongful use of a controlled substance) of the UCMJ. Date Applicant Responded to Notification:20010328 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): (20010329) Separation Authority (date): CHIEF OF NAVAL EDUCATION AND TRAINING (20010329)Reason for...

  • NAVY | DRB | 2014_Navy | ND1400325

    Original file (ND1400325.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2012_Navy | ND1201325

    Original file (ND1201325.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2012_Navy | ND1200168

    Original file (ND1200168.rtf) Auto-classification: Denied

    Representation: 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 Board presumes regularity in the conduct of governmentalaffairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2010_Navy | ND1001211

    Original file (ND1001211.rtf) Auto-classification: Denied

    Considering the seriousness of the charges, the reliability of the evidence, and the Applicant’s own admission, the command believed that the preponderance of the evidence warranted administrative separation due to commission of a serious offense. ” 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. Additionally,...

  • NAVY | DRB | 2009_Navy | ND0900414

    Original file (ND0900414.rtf) Auto-classification: Denied

    While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct is not sufficient to warrant a discharge upgrade. The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.After a thorough...

  • NAVY | DRB | 2010_Navy | ND1001986

    Original file (ND1001986.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 Board presumes regularity in the conduct of governmental affairs unless there is...

  • NAVY | DRB | 2007_Navy | ND0700215

    Original file (ND0700215.rtf) Auto-classification: Denied

    The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by a Special Courts-Martial for violations of the Uniform Code of Military Justice (UCMJ), Article 92, (Violate a lawful general regulation by wrongfully consuming an alcoholic beverage while under the age of 21), Article 111 (Operate a motor vehicle while under the influence of alcohol), Article128 (Commit an assault upon a police sergeant by...