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NAVY | DRB | 2011_Navy | ND1101841

Original file (ND1101841.rtf) Auto-classification: Denied

ex-DCFN, USN

Current Discharge and Applicant’s Request

Application Received: 20110727

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)        19970827 - 19980721     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980722     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010818      Highest Rank/Rate: BM3
Length of Service: Y ear s M onth s 05 D a ys
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.22

Awards and Decorations ( per DD 214):      AFEM SSDR NAVY “ E ”

Periods of UA /CONF :       UA: 20001119 - 20001120 (2 days ), 20001222 - 20001227 (6 days ), 20010111 - 20010130 (20 days ), 20010317 (1 day ) / CONF: 20010510 - 20010601 (22 days )

NJP : NONE         S CM : NONE

SPCM: 1

- 20010503 :       Art icle 86 (Absence without leave; 4 specifications)
         Specification 1: UA, 20001119 - 20001120, 2 days
         Specification 2: UA, 20001222 - 20001227, 6 days
         Specification 3: UA, 20010111 - 20010130, 20 days
         Specification 4: UA, 20010317
         Art icle 87 (Missing movement, missed ship’s movement on 20001119)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , wi llfully disobeyed order of petty officer )
         Article 107 (False official statements, wrongfully made false statements regarding a pipe bomb aboard a Naval vessel)
         Article 134 (General Article , 2 specifications)
         Specification 1: Wrongfully endeavor to impede an investigation by attempting to influence a junior petty officer not to talk to NCIS
         Specification 2: Break restriction
         Sentence : RIR FOP CONF 14 days (Pretrial confinement credited)

C C : 2
- 20010 101 :       Offense: Assault, D omestic violence
         Sentence: CONF 365 days (3 64 days suspended), Fine $5,000.00 ($4,500.00 suspended)

- 20010 508 :      Offense: Violation of court order
         Sentence: CONF 365 days (325 days suspended), Fine $5,000.00 ($5,000.00 suspended)

C IVIL ARREST : 2

- 20010601:      Offense: Forgery
         Sentence: Pending civilian action on 20010604

- 200 10713:      Offense: Armed robbery, A ssault in the second degree
         Sentence: Pretrial confinement pending trial on 20010805

Retention Warning Counseling : 1

- 19990712 :       For failure to maintain adequate funds in checking account by having four checks returned in the amount of $630.00

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ MISCONDUCT ”
         “ 2000 NOV 19 TO 2000 NOV 20, 2000 DEC 22 TO 2000 DEC 27, 2001 JAN 11 TO 2001 JAN 30, 2001 MAR 17, 2001 MAY 10 TO 2001 JUN 01 ”

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), Change 31, effective 25 January 2001 until 21 August 2002, 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 s of the UCMJ, Article s 91, 107 , and 134.

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

Applicant’s Issues

1. The Applicant contends his discharge was inequitable , because his criminal record has been expunged.

Decision

Date : 20 1 2 0904 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 included one NAVPERS 1070/613 (Page 13) warning , one S pecial C ourt- M artial for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 4 specifications : S pecification 1: UA, 20001119 - 20001120, 2 days, Specification 2: UA, 20001222 - 20001227, 6 days, Specification 3: UA, 20010111 - 20010130, 20 days, and Specification 4: UA, 20010317), Article 87 (Missing movement, missed ship’s movement on 20001119), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, willfully disobeyed order of petty officer), Article 107 (False official statements, wrongfully made false statements regarding a pipe bomb aboard a Naval vessel) , and Article 134 (General Article , 2 specifications : Specification 1: Wrongfully endeavor to impede an investigation by attempting to influence a junior petty officer not to talk to NCIS and Specification 2: Break restriction ) , two civilian convictions for Assault, Domestic Violence, and Violation of a court order , and two civilian arrests for Forgery, Armed Robbery, and Assault in the second degree.
Based on the offenses committed by the Applicant, his command administratively processed him for separation. W hen notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The a dministrative b oard determined that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to a civilian conviction. The a dministrative b oard recommended that the Applicant be separated from the Navy due to Misconduct and that he receive an Under Other Than Honorable Conditions characterization of service. The Separation Authority concurred and separated the Applicant due to Misconduct (Commission of a Serious Offense) .

: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because his criminal record has been expunged. The Applicant submitted a civilian order of expungement but the order did not specify what charges were being expunged nor did the Applicant provide specifics on what charges were expunged. In any event, the Applicant had numerous military violations of serious offenses that clearly warranted separation. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Articles 87, 91, 107, and 134 are offense s that warrant processing for administrative separation regardless of grade, performance, or time in service. This 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 S pecial or G eneral C ourt- M artial. The Applicant was ultimately discharged by the more lenient administrative process. Even if all of his civil convictions were expunged from his record, he had multiple military UCMJ violations that warranted discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 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 reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 | ND1101841

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