Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201672

Original file (ND1201672.rtf) Auto-classification: Denied

ex-ET2, USN

Current Discharge and Applicant’s Request

Application Received: 20120801

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       GOOD OF THE SERVICE

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20010316 - 20020211     Active:          20020212 - 20060119

Period of Service Under Review:
Date of Current Enlistment: 20060120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100510      Highest Rank/Rate: ET2
Length of Service: Year(s) Month(s) 21 D ay(s)
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 7 )      Behavior: 2 .7 ( 7 )        OTA: 2.90

Awards and Decorations ( per DD 214):

Periods of C ONF :

NJP :

- 20060619 :      Article (Absence without leave)
         Awarded: Suspended:

S CM :    SPCM:    Retention Warning Counseling:

C C :

- 20090513 :       Offense: Unlawful imprisonment Applicant entered into a Pretrial Diversion agreement with Kitsap County District Court regarding the charge of attempted unlawful imprisonment. The prosecution agreed to dismiss the charge so long as ET2 complied with the provisions of the agreement
         Sentence : 2 years probation, Fine $800.00, administrative fee $100.00, domestic violence perpetrator’s program and no unauthorized use or possession of firearms outside of required by U.S. Navy for 2 years

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 134 .

C . 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.       The Applicant contends the civilian charge “attempted unlawful imprisonment” or a closely related offense under the Manual for Courts-Martial ( MCM ) would authorize a punitive discharge, but the charge was reduced to “breach of peace , ” which would not authorize a discharge in accordance with Naval Military Personnel Manual (MILPERSMAN) Article 1910-144 and Appendix 12 of the MCM .
2 .       The Applicant contends the Navy breached its promise not to discharge him after he entered into a civilian diversion agreement .

Decision

Date: 20 1 3 0916             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 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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave ) and civil conviction for unlawful imprisonment in the State of Washington . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant initially exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. On the da y of his administrative board , and after consulting his counsel , he waived right to appear before an administrative board .

: (Decisional) ( ) . The Applicant contends the civilian charge “attempted unlawful imprisonment” or a closely related offense under the MCM would authorize a punitive discharge, but the charge was reduced to “breach of peace , ” which would not authorize a discharge in accordance with MILPERSMAN Article 1910-144 and Appendix 12 of the MCM. The Applicant contends he was separated after being charged for a felony, which was reduced to a misdemeanor after conducting a pre-trial diversionary agreement with the State of Washington. In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge. However, such information can be and was considered by the NDRB in making a determination as to the propriety and equity of the separation. In this case , the evidence of record reflects the Applicant engaged in behavior warranting his civilian arrest for an alleged felony offense and subsequent judicial agreement to lesser related misdemeanor charges that included the acceptance of court - imposed probation, counseling, firearms restrictions, and fines.

During the separation proceedings, the Applicant initially exercised his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. However , on the day of his Administrative Separation Board , he waived his right to appear before the board. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. The NDRB determined the Applicant’s discharge for Misconduct (Civilian Conviction) was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends the Navy breached its promise not to discharge him after he entered into a civilian diversion agreement. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. 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 the contention the command treated him improperly or unfairly. The documentation submitted by the Applicant did not show any promise by the Navy to not discharge him if he entered into a civilian diversion agreement. The NDRB determined the Applicant’s discharge was proper and equitable. 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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 | ND1201672

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