Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201569

Original file (ND1201569.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20120711

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)        20011002 - 20011031     Active:

Period of Service Under Review:
Date of Current Enlistment: 20011101     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060323      Highest Rank/Rate: HM3
Length of Service: Y ear( s ) M onth( s ) 23 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.3 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.13

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20050908 :      Article (Absence without leave , failure to go to place of duty , 2 specifications )
         Article (Failure to obey order or regulation , 2 specifications )
         Awarded : Susp ended:

S CM :    SPCM:             Retention Warning Counseling :

C C :

- 20060126 :       Offense: Two counts of violation of Penal Code 273.a(a), Willful Cruelty to a Child.
         Sentence : Confinement for 270 days

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT (SERIOUS OFFENSE) ”

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 11, effective 26 April 2005 until 11 June 2008, 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 of the UCMJ, Article s 92 and 134 ( Child endangerment, resulting in grievous bodily harm ) .

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

Applicant’s Issues

1 .       The Applicant contends his misconduct was an isolated incident in 46 months of service.
2.       The Applicant contends the civilian charges have been officially downgraded, dismissed, and expunged from his civil record.
3.       The Applicant contends no U niform Code of Military Justice (UCMJ) charges were brought against him.
4.       The Applicant contends he was not provided legal military counsel prior to his discharge.

Decision

Date: 20 1 3 0502             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 for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, failure to go to place of duty , 2 specifications ) and Article (Failure to obey order or regulation , 2 specifications ) and one civilian conviction for willful cruelty to a child. Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure for Misconduct (Serious Offense), Misconduct (Civilian Conviction), and Family Advocacy Program Rehabilitation Failure , the Applicant exercis ed rights to c onsult with a qualified counsel and request an administrative board, but waived his right to submit a written statement. The administrative separation board voted 3-0 that the preponderance of the evidence support ed that the App licant had committed misconduct and was a Family Advocacy Program Rehabilitation Failure and voted 3-0 to recommend separation Under Other Than Honorable Conditions. The Separation Authority decided upon Misconduct (Serious Offense) as the primary basis for discharge, and the Applicant was discharged in absentia due to his civilian confinement.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 46 months of service. During the Applicant’s enlistment, he had an NJP for violating UCMJ Articles 86 and 92 and a civilian conviction for willful cruelty to a child. Based on the Applicant’s record of service, the NDRB determined the Applicant’s contention was without merit , and he 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 the awarded characterization of service was warranted. Relief denied.

Issues 2-3 : (Decisional) ( ) . The Applicant contends the civilian charges have been officially downgraded, dismissed, and expunged from his civil record , and no UCMJ charges were brought against him. In accordance with the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant was provided the opportunity to present his case before an administrative separation board , which determined by a vote of 3-0 that the preponderance of the evidence supported that the Applicant had committed misconduct and was a Family Advocacy Program Rehabilitation Failure. During his administrative separation board, the Applicant’s counsel stated that the Applicant pled guilty before a civil court and there was a civilian conviction. The Applicant’s counsel further stated that if the Applicant kept up with his probation, the felony conviction could be reduced to a misdemeanor in three years and it could be further expunged if he complied with Child Protective Services requirements. The Applicant submitted court documents from 17 September 2010 that show the conviction was reduced to a misdemeanor, dismissed, and expunged. The reduction, dismissal, and expungement of

the crime, however, does not change the basis for the Applicant’s discharge from the Navy. He committed a serious offense, he received a civil conviction, he was a Family Advocacy Program Rehabilitation Failure, he warranted separation from the Navy, and he equitably received an Under Other Than Honorable Conditions characterization of service. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he was not provided legal military counsel prior to his discharge. The service record clearly shows the Applicant exercised his right to consult with a qualified counsel and was represented by military counsel during his administrative separation board. The NDRB determined the Applicant’s contention is contradictory to documents in his service record , and his contention is without merit. 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 | ND1201569

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