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NAVY | DRB | 2012_Navy | ND1200325

Original file (ND1200325.rtf) Auto-classification: Denied

ex-ISSN, USN

Current Discharge and Applicant’s Request

Application Received: 20111122

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)        20010922 - 20020701     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020702     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040430      Highest Rank/Rate: ISSN
Length of Service: Y ear M onth s 29 D a ys
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 2.67
Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP:     SCM:     SPCM:             Retention Warning Counseling :

C C :
- 20031007 :       Offense: Violating Section 541.03 (criminal damage or endangering) of codified ordinances of Cuyahoga Falls, Ohio, a second degree misdemeanor.
         Sentence : $500 fine ($250 suspended) and pay costs in the amount of $247 (Section 541.03) and $233

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction .

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 109 (Property other than military property of the United States - waste, spoilage, or destruction) .

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

Applicant’s Issues

1.        The Applicant seeks to use the GI Bill.
2 .        The Applicant is seeking a position in the Nevada Army National Guard Active Guard Reserve .
3 .        The Applicant contends his discharge was based on an isolated incident in 21 months of service with no other adverse action .
4 .        The Applicant contends his discharge is too harsh by today’s standards.
5 .        The Applicant contends his discharge was a case of double jeopardy.
6 .        The Applicant contends he was innocent.
7 .        The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date : 20 1 2 1101             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’s record of service included NAVPERS 1070/613 (Page 13) warning documenting the Applicant’s civilian conviction violating Section 541.03 (criminal damage or endangering) of codified ordinances of Cuyahoga Falls, Ohio, a second degree misdemeanor. In addition to the civilian conviction, the Applicant’s separation package included statements from the Applicant’s Commanding Officer that the Applicant failed to disclose that he had a juvenile criminal record on several documents . Based on the civil conviction, command administratively processed for separation. The Applicant was notified for administrative separation processing for Misconduct (Civilian Conviction), Misconduct (Commission of a Serious Offense), and Fraudulent Entry Into the Naval Service. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . The Applicant was not entitled to request an administrative board since he had less than six years of service and was not being recommended for an Under Other Than Honorable Conditions discharge .

: (Nondecisional) The Applicant seeks to use the GI Bill. 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.

: (Nondecisional) The Applicant is seeking a position in the Nevada Army National Guard Active Guard Reserve. The Applicant is currently a S oldier in the Nevada Army National Guard and received a notice of non-consideration for an Active Guard Reserve position due to Army Regulation 135-18 stating being involuntarily removed from Active Duty is a non-waiverable disqualification into the Active Guard Reserve program. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any o f the Armed Forces, the NDRB is not authorized to change a reenlistment code or upgrade a discharge to permit access to a military program . The NDRB can only review the propriety and equity of a discharge.

Issues 3 -4 : (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 21 months of service with no other adverse action, and it is too harsh by today’s standards. In addition to the Applicant’s civilian conviction, the Applicant failed to disclose that he had a juvenile criminal record on several documents. The Applicant’s Commanding Officer decided not to formally charge the Applicant for violation of UCMJ Article 107 (False official statements). However, the civilian conviction and fraudulent enlistment presented legitimate grounds to process the Applicant for administrative discharge. The NDRB determined the Applicant’s misconduct evidenced by both the civilian conviction and falsifying official statements was not an isolated incident. Furthermore, the NDRB determined t he

Applicant’s General (Under Honorable Conditions) characterization of service was not too harsh by today’s standards or at the time of discharge. They were, and still are, legitimate reasons to administratively separate a servicemember from the Armed Forces. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his discharge was a case of double jeopardy. The Applicant contends his punishment from the civilian conviction and subsequent administrative separation to be double jeopardy. Administrative discharge processing is a separate and distinct process from a civilian conviction or court-martial. Furthermore, administrative discharge processing is administrative in nature and is not considered a form of punishment. As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

6 : (Decisional) ( ) . The Applicant contends he was innocent. The Applicant contends his chain of command told him that he would have all the time he needed to fight the charges that he claims he was not guilty of committing. The Applicant further claims that once he was under arrest, his Command Master Chief told him that he would not be allowed the leave time to go to trial and was ordered to plea d “no contest” to a misdemeanor charge. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made instead of pleading “no contest . ” The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

7 : (Decisional) ( ) . The Applicant contends his post-service conduct to include serving with the Nevada Army National Guard in Iraq is worthy of an upgrade. 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 provided a personal statement, Army National Guard DD Form 214, a letter from the Cuyahoga Chief of Police, service records from the Navy and National Guard, the Applicant’s biographical sketch, and a character reference from his Brigade Command Sergeant Major. 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 t he characterization of service received was appropriate considering the length of service and UCMJ violations. 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 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 | 2012_Navy | ND1200325

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