Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301041

Original file (ND1301041.rtf) Auto-classification: Denied

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20130410

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       REMOVE ANY REFERENCE TO MISCONDUCT

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19940914 - 19950702     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950703     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980918      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 16 D a y ( s )
Education Level:        AFQT: 75
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

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 18, effective 12 December 1997 until 29 March 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 120 .

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

Applicant’s Issues

1.        The Applicant contends his discharge w as based on errors of fact and law.
2.       The Applicant contends other Navy personnel involved in the same incident have been granted relief by the NDRB.

Decision

Date : 20 1 3 1114             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 propriety. The Applicant’s record of service included a n April 1998 civilian arrest for rape and murder . Based on the offenses allegedly committed by the Applicant, command administratively processed for separation. 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 separation code of HKQ on the Applicant’s DD Form 214 indicates he waived his right to appear before an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was based on errors of fact and law. The Applicant was arrested in April 1998 on suspicion of the rape and murder of another Sailor’s wife. During interrogation by police detectives, the Applicant eventually confessed to at least some elements of the crime. The Applicant was awaiting trial, and in the hands of civilian authorities, when he was administratively processed for separation from the Navy. The Applicant waived his right to an administrative board, as indicated on his DD Form 214, and was separated for commission of a serious offense based on a preponderance of evidence. The Applicant was tried in civilian court in June 1999 and convicted of rape. The court sentenced the Applicant to eight years and six months imprisonment. The Applicant served seven years and six months and was released for good behavior. The Applicant contends the errors of fact and law are that he was unlawfully forced to falsely confess to crimes under duress of polic e interrogation, and that he was subsequently discharged from the Navy for a serious offense that he did not commit. The facts of the Applicant’s case are known to the NDRB from previous cases of other Sailors who were also convicted for this same crime based on confessions allegedly obtained under duress. Enough evidence has now been introduced to support the Applicant’s contention that errors of fact and law existed in the original convictions , and relief is warranted. As the Applicant’s service record contains no other evidence of negative aspects of performance or conduct, and as the narrative reason for separation has been proved by a preponderance of evidence to be in error, the NDRB determined the Applicant should be granted full relief with an Honorable discharge and a Secretarial Authority narrative reason for separation . Relief granted.

: (Decisional) ( ) . The Applicant contends other Navy personnel involved in the same incident have been granted relief by the NDRB. As the NDRB granted full relief for the Applicant under Issue 1, the NDRB did not consider this issue.

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 the discharge was proper and equitable at the time of discharge. However, based on evidence submitted by the Applicant , the awarded characterization of service shall and the narrative reason for separation shall change to . 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

Similar Decisions

NAVY | DRB | 2013_Navy | ND1300529

Original file (ND1300529.rtf) Auto-classification: Denied

Considering his honorable service before being held by civilian authorities, and after reviewing the facts, circumstances, substantial post-discharge documentation, and unique elements of this case, the NDRB determined that relief is warranted with an upgrade in the characterization of service to Honorable and a change in the Narrative Reason for Separation to Secretarial Authority. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change...
NAVY | DRB | 2002_Navy | ND02-00611

Original file (ND02-00611.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-AR, USN Docket No. ND02-00611 Applicant’s Request The application for discharge review, received 020404, requested that the characterization of service on the discharge be changed to general/under honorable conditions. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF...
NAVY | DRB | 2013_Navy | ND1301092

Original file (ND1301092.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)20030513 - 20040127Active:Pre-Service Drug Waiver: Period of Service Under Review: Date of Current Enlistment: 20040128Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20070918Highest Rank/Rate: AZ3Length of Service: Year(s)Month(s)22 Day(s)Education Level:AFQT: 64EvaluationMarks:Performance:4.0(4)Behavior:3.51(4)OTA: 3.91Awards and...
NAVY | DRB | 2009_Navy | ND0900095

Original file (ND0900095.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19930812 - 19940626Active: 19940627 – 19960627 USN 19960628 - 20020627 Period of Service Under Review: Date of Enlistment: 20020628Age at Enlistment:Period of Enlistment:NFIRDate of Discharge:20071015Highest Rank/Rate:MM1Length of Service: 13 Years Months20 DaysEducation Level:AFQT: NFIREvaluationMarks:Performance:3.8(5)Behavior:3.6(5)OTA: 3.86Awards and...
USMC | DRB | 2009_Marine | MD0901652

Original file (MD0901652.rtf) Auto-classification: Denied

The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain...
USMC | DRB | 2015_Marine | MD1401787

Original file (MD1401787.rtf) Auto-classification: Denied

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...
NAVY | DRB | 2008_Navy | ND0801591

Original file (ND0801591.rtf) Auto-classification: Denied

An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found Dissenting Opinion The Applicant’s rape charge, the basis for his discharge, was expunged. ”...
NAVY | DRB | 2012_Navy | ND1201786

Original file (ND1201786.rtf) Auto-classification: Denied

Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...
NAVY | DRB | 2015_Navy | ND1500960

Original file (ND1500960.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Separating Authority approved the Administrative Board’s recommendation to separate the Applicant and directed the Applicant be separated with Under Other Than Honorable Conditions discharge. ” 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...
NAVY | DRB | 2010_Navy | ND1001991

Original file (ND1001991.rtf) Auto-classification: Denied

” 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. 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. Additionally, the NDRB has no authority to upgrade a...

Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1301041

Similar Decisions