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NAVY | DRB | 2012_Navy | ND1201901
Original file (ND1201901.rtf) Auto-classification: Denied

ex-IC1, USN
Current Discharge and Applicant’s Request
Application Received: 20120913
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      
        
Summary of Service
Prior Service:
 Inactive:         US N R (DEP)        19801006 - 19801127     Active:   19801128 - 19841126 HON
                                    USN 19841127 - 19891026 HON
                                   
Period of Service Under Review:
 Date of Current Enlistment: 19891027     Age at Enlistment:
Period of E nlistment : Years 34 Month Extension
Date of Discharge: 19971110      Highest Rank/Rate: IC1
Length of Service: Year(s) Month(s) 14 D ay(s)
 Education Level:        AFQT: 85
Evaluation M arks:         Performance: 3.9 ( 7 )      Behavior: 4.0 ( 7 )        OTA: 3.94

Awards and Decorations ( per DD 214):      (3) (4)

Periods of UA /C ONF :

NJP : S CM :      SPCM:    CIVIL ARREST:    Retention Warning Counseling:

GCM:
- 19960718 :      Article 132 (Frauds against the United States)
         Article 134 (General A rticle, indecent acts, 2 specifications )
         Sentence: CONF 5 years BCD
Supplement al Court Martial:
- 19970829: Having determined that a rehearing on sentencing regarding the finding of guilty of the specifications
under C harge I is impracticable. The sentence awarded by the court is disapproved and a sentence of no p unishment is approved pursuant to rule of court-martial 1107.
                 
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:        


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

Applicant’s Issues

 1.       The Applicant contends he was wrongly convicted of a crime, the conviction/sentence was overturned, and he was returned to full duty, yet his command still separated him Under Other Than Honorable Conditions instead of the recommended General (Under Honorable Conditions).
Decision

Date: 20 1 3 0613             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 standards of equity and propriety. The Applicant’s record of service included General Court - Martial for of the UCMJ: Article 132 ( Frauds against the United States, 1 specification) and Article 134 (General A rticle - indecent acts, 2 specifications). A supplemental court - martial 1-97 dated 29 August 1997 ordered a disapproval of the previous sentence and the awarding of “no punishment.” This decision was due to the impracticability of rehearing the sentencing regarding the finding of guilty of the spec ifications under C harge I (Article 132) from the original G eneral Court-Martial . The Applicant’s record does not reflect any determination based on the charges of violating Article 134 from the G eneral Court-Martial. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, the Applicant submitted a Letter of Deficiency from his defense counsel that was submitted after an administrative separation board. The Applicant was discharged Under Other Than Honorable Conditions for a Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends he was wrongly convicted of a crime, the conviction/sentence was overturned, and he was returned to full duty, yet his command still separated him Under Other Than Honorable Conditions instead of the recommended General (Under Honorable Conditions). After the Applicant’s Bad Conduct Discharge from his General Court-Martial was disapproved in the supplemental court-martial decision of 29 August 1997, the Applicant was returned to his command. His commanding officer then recommended him for administrative separation for commission of a serious offense due to his General Court-Martial conviction for violating UCMJ Articles 132 and 134. The supplemental court-martial decision did not overturn the conviction, just the punishment. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. The Applicant elected to appear before an administrative separation board, which found that a preponderance of the evidence showed that he committed a serious offense. The Applicant’s defense counsel submitted a Letter of Deficiency and asked that the Applicant’s discharge be suspended or that at the very least he receive a General (Under Honorable Conditions) discharge. The Separation Authority, after reviewing the board’s recommendations and the Letter of Deficiency, determined to separate the Applicant Under Other Than Honorable Conditions for a Pattern of Misconduct. After a complete review of the Applicant’s records, the NDRB determined he was convicted at a General Court-Martial for several UCMJ violations, the punishment (but not the conviction) was subsequently disapproved, he was properly processed for administrative separation and was afforded full due process and all applicable rights, and was properly and equitably discharged Under Other Than Honorable Conditions by the Separation Authority after he review ed the Applicant’s defense counsel’s request for a General discharge. 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 . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. 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 . The Applicant is directed to the Addendum for additional information .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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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