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NAVY | DRB | 2012_Navy | ND1200801
Original file (ND1200801.rtf) Auto-classification: Denied

ex-ETSR, USN
Current Discharge and Applicant’s Request
Application Received: 20120222
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)        19981222 - 19990124     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990125     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040116      Highest Rank/Rate: ET3
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
 Education Level:        AFQT: 66
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 3.5 ( 4 )        OTA: 3.18

Awards and Decorations ( per DD 214):     

Periods of UA :

NJP :

         - 20030313: Article 112a (Wrongful use, possession, etc., of controlled substances)

S CM :    CC:               Retention Warning Counseling :

SPCM:

- 200305 2 8 :       Art icle (False official statement)
         Art icle (Larceny and wrongful appropriation - larceny of military property in the amount of approximately $25,295.00 )
         Sentence : CONF 9 months (20030528-20031028, 153 days) Fine of $2000.00 BCD
         CA: Approved findings and sentence of the court, however, the part of the sentence extending to a Bad Conduct Discharge shall be suspended for six months from the date of the Convening Authority’s action

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 :        


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

Applicant’s Issues

 1.        The Applicant contends he was coerced to self-incriminate while not being fully aware of his rights and charges . He also contends he was a victim of mistaken identity and ethnic profiling .
2 .       The Applicant contends his record of service outweighs his misconduct.
3 .       The Applicant contends his punishment does not fit the crime.
4 .       The Applicant contends his discharge is inequitable , because it was based on an isolated incident and he received a harsher punishment than others .

Decision

Date: 20 1 3 0129             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 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 for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc., of controlled substances , marijuana ) and S pecial C ourt- M artial f or of the UCMJ: Article 107 ( False official statement ) and Article 121 (Larceny and wrongful appropriation) . The Applicant did not have a pre-service drug waiver for using marijuana prior to entering the Navy. Although he was sentenced to a Bad Conduct Discharge (BCD) as the result of his conviction at Special Court-Martial, the judge suspended the BCD, and he was returned to his command. Based on the offense s committed by the Applicant, command then administratively processed for separation. Although he met the requirements for administrative separation processing due to Misconduct (Drug Abuse) and Misconduct (Serious Offense) , his command only notified him of their recommendation to administratively discharge him for Misconduct (Serious Offense). When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . Because he was notified of administrative separation processing for an offense that he was found guilty of at a Special Court-Martial that did not result in a Bad Conduct Discharge, the authority to approve the discharge was the Secretary of the Navy. The Secretary of the Navy had legally delegated this authority down to the Commander, Navy Personnel Command. Commander, Navy Personnel Command reviewed the Applicant’s record of service and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense).

: (Decisional) ( ) . The Applicant contends he was coerced to self-incriminate while not being fully aware of his rights and charges. He also contends he was a victim of mistaken identity and ethnic profiling. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions that he was coerced to self-incriminate, was not fully aware of his rights and charges, or was the victim of mistaken identity and ethnic profiling. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. At a Special Court-Martial, the Applicant pled guilty to charges of violating UCMJ Articles 107 and 121. Before doing so, he was provided a qualified counsel and during the trial the Applicant would have been questioned extensively by the judge to ensure the Applicant knew exactly what he was pleading guilty to. After the guilty findings at Special Court-Martial, his case was sent to an automatic review by the United States Navy-Marine Corps Court of Criminal Appeals, who affirmed the propriety of the trial and further affirmed the sentence. Further, if the Applicant believed he was truly targeted unfairly or made to self-incriminate, he could have elected to present his case before an administrative separation board as part of the administrative separation process. However, he waived this right, in writing, along with his rights to consult again with a qualified counsel and to submit

a statement to the Separation Authority. A complete review of the records shows the Applicant was afforded all due process rights, was found guilty of violating UCMJ Articles 107 and 121 at a Special Court-Martial after he pled guilty to those charges , was afforded all rights during the administrative separation process (rights that he waived in writing), and was properly and equitably discharged by the Separation Authority (Commander, Navy Personnel Command). Relief denied.

: (Decisional) ( ) . The Applicant contends his record of service, as evidenced by his Good Conduct Medal and National Defense Service Medal, outweighs his misconduct. During the Applicant’s enlistment, he was found guilty at NJP of violating UCMJ Article 112a for the wrongful use of marijuana. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, awards, 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 special or general court-martial. However, before the Applicant could be processed for separation due to Misconduct (Drug Abuse), his command referred charges to a Special Court-Martial for violation of UCMJ Articles 107 and 121, charges that he pled guilty to. After being convicted at court-martial, his command properly processed the Applicant for Misconduct (Serious Offense). The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and determined the Under Other Than Honorable Conditions characterization was warranted. Relief denied.
Issue 3 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his punishment does not fit the crime. The NDRB agrees with the Applicant. However, the NDRB believes the punishment should have been harsher not more lenient. He should have received a Bad Conduct Discharge after pleading guilty to false official statements and larceny at Special Court-Martial, however, the judge suspended the punitive discharge, and his command subsequently processed the Applicant for administrative discharge. The NDRB is not authorized to make a discharge characterization of service more unfavorable and so determined the Under Other Than Honorable Conditions was equitable and does not warrant an upgrade based upon his violation of UCMJ Articles 107, 112a, and 121. Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge is inequitable, because it was based on an isolated incident and he received a harsher punishment than others. Before going to court-martial, the Applicant had been found guilty of violating UCMJ Article 112a at NJP, an offense that requires mandatory separation processing. Subsequently, the Applicant pled guilty at Special Court-Martial of making false official statements and committing larceny. All of these offenses are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and warrant administrative separation processing. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offenses, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .


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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