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NAVY | DRB | 2011_Navy | ND1101211

Original file (ND1101211.rtf) Auto-classification: Denied

ex-SKSR, USN

Current Discharge and Applicant’s Request

Application Received: 20110412

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)        20021031 - 20021106     Active:

Period of Service Under Review:
Date of Current Enlistment: 20021107     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061103      Highest Rank/Rate: SKSN
Length of Service: Y ear( s ) M onth( s ) 28 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.42

Awards and Decorations ( per DD 214):      (2) (2)

Periods of UA /C ONF :

NJP :

- 20040415 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey lawful order or regulation )
         Awarded: Suspended:

- 20050831 :      Article (Absence without leave , 2 specifications )
         Specification 1: 20050801-20050802
         Specification 2: 20050820-20050822, 2 days
         Article (Failure to obey lawful order or regulation )
         Awarded : Susp ended:

S CM :

- 20060710 :       Art icle (Assault , 3 specifications )
         Specification 1: Unlawfully pinning an E-1 against a wall
         Specification 2: Choking him
         Specification 3: Shoving the head of the E-1 into the locker
         Sentence :

SPCM:

C C :
- 20030819 :       Offense: Following to closely
         Sentence : Fined

- 20040326 :       Offense: Reckless driving
         Sentence : Unknown

- 20040504 :       Offense: Following too closely and no operator license
         Sentence : Fined

- 20041008 :       Offense: Driving with suspended license and failure to use headlights
         Sentence : 30 days in jail (28 suspended) fined $180.00 and court costs

- 2004 1012 :       Offense: Speeding (95 in 65) and driving under suspended license
         Sentence : Fined

- 20041221 :       Offense: Driving on suspended license, altered license plate, no vehicle registration, and improper passing
         Sentence : 30 day jail (suspended/probation) and fine

- 2005 0 118 :       Offense: Reckless driving, driving with suspended license (6 ^th offense) and defective equipment
         Sentence : Twelve months jail (ten months, 24 days suspended), license suspended for 90 days, $92.00 court cost and fined $30.00 and $6.00 court cost

- 20050316 :       Offense: Disregard a traffic light and driving on a suspended license
         Sentence : Fined $300 and court cost

- 20050822 :       Offense: Suspended license and reckless driving
         Sentence : Found guilty in absentia

- 20050920 :       Offense: Operating an uninspected vehicle and driving with a suspended operators license
         Sentence : Fined $50.00 plus court cost

Retention Warning Counseling :

- 20040415 :       For violations of UCMJ Articles 91 and 92

- 20050202 :       For reckless driving (accident)/ fail to maintain control, driving with a suspended license (6 ^th ), and defective equipment

- 20050922 :       For driving with a suspended license and reckless driving accident

- 20051119 :       For violation of UCMJ Article 86 and Article 92

NDRB Documentary Review Conducted (date):        20080228
NDRB Documentary Review Docket Number:   ND08-00153
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 20050801 - 20050802; 20050820 - 20050822; 20060810 - 20061102. ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 .

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

Applicant’s Issues

1.       Applicant contends his discharge was harsh and the circumstances precipitating his discharge were based upon a civil arrest that was eventually dismissed in court.
2.       Applicant contends post - service conduct is worthy of consideration.

Decision

Date: 20 1 2 0612             Location: Washington D.C .        R epresentation :

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

Discussion

The Naval Discharge Review Board, 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 substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave, etc. , ), Article ( Insubordinate conduct toward warrant, noncommissioned, petty officer , 1 specification), and Article ( Failure to obey order or regulation, ) , and for of the UCMJ: Article ( Assault , ). In addition to the UCMJ misconduct, the Applicant’s record reflects numerous civilian traffic violation convictions. The Applicant was held in civil jail wh ile his administrative board convened and decided his outcome . When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel but waived submission of a written statement , although he eventually submitted one from civilian jail via his legal counsel and exercised his right to an administrative board in absentia .

: (Decisional) ( ) . The Applicant contends his discharge characterization was harsh and the circumstances precipitating his discharge were based upon a civil arrest that was eventually dismissed in court. While on deployment, the Applicant’s command flew him to Norfolk to begin processing for the end of his enlistment. His command intended for him to reach his completion of required active service and did not send him back to Norfolk for misconduct processing. Within a few days after returning from overseas, the Applicant was stopped by the Norfolk Police and retained due to an outstanding traffic warrant that had been served while the Applicant was overseas. While in civilian custody, the Navy’s Transient Personnel Unit processed the Applicant for discharge due to Misconduct - Pattern of Misconduct. Three months later, a civilian judge ruled that the Applicant had been improperly stopped and all charges against him were dismissed. Though the discharge was proper at the time, the NDRB determined that, due to the Applicant’s subsequent dismissal of charges and improper detainment, testimony and evidence provided by the Applicant, and facts and circumstances unique to this case, his discharge was ultimately improper and that relief is warranted. Therefore, the NDRB voted 5-0 to upgrade the Applicant to Honorable and 5-0 to change the Narrative Reason for Separation to Secretarial Authority. Relief granted.

: (Decisional) ( ) . The Applicant provided a personal statement, five character references, boarding pass stubs from his CONUS return flight to begin TAP classes, multiple traffic citation related materials with associated court summons notices, and a letter from the Norfolk Department of Police concerning an unresolved complaint the Applicant filed against the officer w ho arrested him the day his UA began post - deployment. In lieu of the full relief given in Issue 1, the NDRB did not provide relief based on this issue.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

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 | ND1101211

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