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NAVY | DRB | 2011_Navy | ND1100955

Original file (ND1100955.rtf) Auto-classification: Denied

ex-AD2, USN

Current Discharge and Applicant’s Request

Application Received: 20110302

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)        20000223 - 20000426     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000427     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031229      Highest Rank/Rate: AD2
Length of Service: Y ear s M onth s 03 D ays
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 3.7 ( 3 )        OTA: 3.62

Awards and Decorations ( per DD 214):      KCM (2) AFSM MUC SSDR (2) NDSM G C M AFEM NATO

Periods of UA /C ONF :

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

C C :
- 20030912 :       Offense: Child Abuse (Extracted from Administrative Separation Board)
         Sentence : Court costs $378.00, Probation 5 years, Community Service 50 hours

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ KOSOVO CAMPAIGN MEDAL (2), ARMED FORCES SERVICE MEDAL, NATO MEDAL, MERITORIOUS UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON (2), LETTER OF APPRECIATION, NATIONAL DEFENSE SERVICE MEDAL, LETTER OF COMMENDATION, GOOD CONDUCT MEDAL, ARMED FORCES EXPEDITIONARY MEDAL ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 12 0 .

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.       The Applicant seeks a change to his RE Code.
2.       The Applicant contends his discharge was based on an isolated incident in 38 months of honorable service.
3.       The Applicant believes his post-service conduct warrants consideration of upgrading his discharge.

Decision

Date: 20 1 2 0517             Location: Washington D.C .        R epresentation : NONE

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’s record of service did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violation s of the Uniform Code of Military Justice . However, it did include one civilian conviction for child abuse. Based on the child abuse conviction, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his right to consult with a qualified coun se l, but exercised his rights to submit a written statement and request an administrative board . The Administrative Separation Board voted unanimously to recommend separation Under Other Than Honorable Conditions .

: (Non - decisional) The Applicant seeks a change to his 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, it is not authorized to change an RE code. 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. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 38 months of honorable service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. In a civilian court, the Applicant pled guilty to child abuse, but adjudication was withheld . This meant that even though he was guilty, the court chose not to convict him. Regardless of whether he was convicted, according to Navy regulation s , m embers may be separated based on civilian convictions, or actions tantamount to findings of guilt , such as withheld adjudication . The nature of the abuse would have been covered under Article 120 of the UCMJ, which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge , and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. H is command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined that the discharge was proper. However, a fter a thorough review of the facts and circumstances that led to the Applicant’s discharge, the Board determined the awarded character of service was inequitable. Pursuant to a plea bargain, the Applicant pled guilty to child abuse. However, adjudication was withheld; thus, he was not convicted. The court’s decision to withhold adjudication suggests questionable circumstances in the Applicant’s favor. Based on the facts and circumstances unique to this case, the NDRB is convinced that although the Applicant committed the misconduct, it was not willful. Therefore, the Board voted unanimously to grant partial relief in upgrading his character of service and to change the narrative reason for separation. Full relief to Honorable was not granted because the majority of the Board members believe d the Applicant should bear some responsibility for his actions. Partial relief granted.

: (Decisional) ( ) . The Applicant suggests his post-service conduct, as evidence d by his character references and college attendance , is worthy of upgrading his discharge. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion 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 to determine if post-service conduct establishes that the in-service misconduct was an aberration. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the seriousness of the offense he committed. 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 d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative rea son for separation shall change to SECRETARIAL AUTHORITY. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | ND1100955

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