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NAVY | DRB | 2012_Navy | ND1201689
Original file (ND1201689.rtf) Auto-classification: Denied

ex-HN, 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:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19920915 - 19921220     Active:            19921221 - 19981217 HON

Period of Service Under Review:
Date of Current Enlistment: 19981218     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000803      Highest Rank/Rate: HM3
Length of Service: Y ear( s ) M onth( s ) 16 D a y ( s )
 Education Level:        AFQT: 88
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.29

Awards and Decorations ( per DD 214):      (2)

Periods of UA :

NJP :     S CM :             CC:      Retention Warning Counseling :

SPCM:

- 20000524 :       Art icle (False official statements , 2 specifications )
         Specification 1: In that Hospital Corpsman Third Class _______, U.S. Navy, Naval Medical Center, Portsmouth, Virginia, on active duty, did, on board Naval Base, Norfolk, Virginia, on or about 19991222, with intent to deceive, make to Detective _______, Navy Exchange store detective, an official statement, to wit: “ M y wife is shopping inside and she has the receipt…we just got this (referring to retail property owned by the Exchange) off layaway in the back, ” or words to that effect, which statement was totally false, and was then known by the said Hospital Corpsman Third Class _______ to be so false.
         Specification 2: In that Hospital Corpsman Third Class _______, U.S. Navy, Naval Medical Center, Portsmouth, Virginia, on active duty, did, on board N aval Base, Norfolk, Virginia, on or about 19991222, with intent to deceive, make to M achinist’s Mate First Class _______, U.S. Navy, Navy Exchange security guard, an official statement, to wit: “ M y wife is shopping inside and she has the receipt…we just got this (referring to retail property owned by the Exchange) off layaway in the back, ” or words to that effect, which statement was totally false, and was then known by the said Hospital Corpsman Third Class _______ to be so false.
          Art icle 121 (Larceny and wrongful appropriation, of retail property, of a value of about $ 2 , 299.99, the property of the Navy Exchange )
         Sentence : 60 days (20000524 - 20000722, 60 days)







Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
“ 07 05 13 ”
          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 921221 UNTIL 981217 ”
        “ UNDER OTHER THAN HONORABLE CONDITIONS ”
“ MILPERSMAN 1910-142 ”
“ 00 MAY 24 TO 00 JUL 22 ”

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 28, effective 30 March 2000 until 29 August 2000, 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 107 and 121 .



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 it was based on an isolated incident.
2.       The Applicant contends his discharge was improper , because it violated his pretrial agreement.
3.       The Applicant contends his discharge was inequitable , because he was not given the opportunity for rehabilitation.
4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 3 0521             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. 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 standards of equity and proprie ty. The Applicant’s record of service included for of the UCMJ: Article 107 ( False official statements , 2 specifications) and Article 121 (Larceny , 1 specification of non-government property worth $2 , 299.99). Based on the offenses committed by the Applicant, command administratively processed for separation. 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.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on an isolated incident. The Applicant received an Honorable discharge for his first enlistment from December 1992 to December 1998. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, the Applicant was found guilty of violating UCMJ Articles 107 and 121 at a Special Court-Martial. D espite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Articles 107 and 121 are two such offenses that warrant processing for administrative separation regardless of grade, performance, or time in service. 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.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because it violated his pretrial agreeme nt. The Applicant’s pre-trial agreement was not found in his record, and he did not provide a copy to the NDRB. Regardless, a p retrial agreement only affect s the outcome of sentencing at the Special Court-Martial and has no bearing on the command’s decision to process him for administrative separation , which is a distinct and separate process from the potentially punitive Special Court-Martial. It is within the authority of the Separati on Authority to administratively separate a service member after a court-martial that does not include a punitive discharge in the sentenc e . The Applicant was provided the opportunity during the administrative separation process to request an administrative board, yet he waived his rights and accepted the discharge recommended in the letter of notification. Since the Applicant provided no evidence that his command violated his pretrial agreement, the NDRB presumed regularity in governmental affairs. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he was not given the opportunity for rehabilitation. There is no requirement to provide rehabilitation of service members under regulations governing separation for commission of a serious offense. Relief denied.



Issue 4 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for 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, evidence of completion of a Bachelor of Science degree, evidence of completion of a Master of Business Administration degree , certificate of Lambda Nu national honor society, and certificate of completion of Florida Department of Education requirements for Biology, Chemistry, and Mathematics. 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 the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The 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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