Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400089

Original file (ND1400089.rtf) Auto-classification: Denied

ex-AM2, USN

Current Discharge and Applicant’s Request

Application Received: 20131025

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)        20011128 - 20020218     Active:          20020219 - 20070809

Period of Service Under Review:
Date of Current Enlistment: 20070810     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100903      Highest Rank/Rate: AM2
Length of Service: Y ear( s ) M onth( s ) 24 D a y ( s )
Education Level:        AFQT: 73
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.57

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

Periods of UA /C ONF :

NJP :     S CM :    SPCM:             Retention Warning Counseling :

C C :

- 20100620 :       Offense: Willful cruelty to a child (felony)
         Sentence : Details N ot Found in Record

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 020219 UNTIL 070809 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 :

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

Applicant’s Issues

1.        The Applicant contends his in-service conduct, awards, evaluation markings, and promotions all indicate honorable service.
2.       The Applicant contends a civilian judge wanted him to finish his enlistment honorably and was willing to grant him a work release program.
3.       The Applicant contends his prior enlistment was characterized as Honorable.

Decision

Date : 20 1 4 0508             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 in his second enlistment included a civilian felony conviction of willful cruelty to a child. Based on the offense 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 in-service conduct, awards, evaluation markings, and promotions all indicate honorable service and warrant an upgrade. After being convicted of a felony in a civilian court, the Applicant’s command determined he was no longer fit to serve. Since he was a dministratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. The Applicant was administratively separated for Misconduct (Civilian Conviction) after his two-year old son was found unresponsive and discovered by medical authorities to be extremely malnourished, suffering from severe medical neglect, and weighing approximately 33 pounds , which included an 11 pound tumor on his left kidney. The Applicant pled guilty in a California court to willful cruelty to a child . Based on the Applicant’s record of service, the NDRB determined the Applicant 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.

: (Decisional) ( ) . The Applicant contends a civilian judge wanted him to finish his enlistment honorably and was willing to grant him a work release program. A service member may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the U niform Code of Military Justice and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The Applicant pled guilty and was convicted in a California state court to charges of willful cruelty to a child (felony). After considering the judge’s offer to release him to finish his enlistment, the Navy determined he was no longer fit to serve and processed him for administrative separation. Based on the seriousness of the offense, the NDRB determined his command acted appropriately, and his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his prior enlistment was characterized as Honorable. 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 convicted in a civilian court of a felony. Although the Applicant had completed a prior enlistment under honorable conditions, his conduct during the current enlistment warranted a characterization of service Under Other Than Honorable Conditions. 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.

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 (General Article).

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 .

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 | 2012_Navy | ND1201569

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

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...
USMC | DRB | 2009_Marine | MD0901318

Original file (MD0901318.doc) Auto-classification: Denied

ex-, USMC Current Discharge and Applicant’s Request Application Received: 20090416 Characterization of Service Received: Narrative Reason for Discharge: Authority for Discharge: MARCORSEPMAN Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 20040223 - 20040907 Active: Period of Service Under Review: Date of Enlistment: 20040908 Age at Enlistment: Period of Current Enlistment: Years Months Date of Discharge:...
NAVY | DRB | 2009_Navy | ND0901378

Original file (ND0901378.rtf) Auto-classification: Denied

The Applicant contends his discharge, based on a conviction at a SPCM, was unjust because he had an illegitimate dependent child (but didn’t know “ where he was or how to contact the mother ” ), and thus, was justified in receiving government funds for a dependent. ” 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...
NAVY | DRB | 2011_Navy | ND1101343

Original file (ND1101343.rtf) Auto-classification: Denied

Upon conclusion of the hearing, the Senior Member of the ASB forwarded the findings to the Applicant’s Commanding Officer as follows: (By 3-0 vote) via a preponderance of the evidence, the Applicant committed Misconduct- Serious Offense and Misconduct- Civil Conviction; (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge due to Misconduct.The Applicant was separated from the Navy on 28...
USMC | DRB | 2010_Marine | MD1001149

Original file (MD1001149.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20021003 - 20030526Active: Period of Service Under Review: Date of Current Enlistment: 20030527Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070724Highest Rank:Length of Service: Year(s)Month(s)28 Day(s)Education Level: AFQT:45MOS: 0612Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...
NAVY | DRB | 2011_Navy | ND1101304

Original file (ND1101304.rtf) Auto-classification: Denied

The NDRB voted to upgrade the Applicant’s discharge to Honorable and to change the narrative reason for separation to Secretarial Authority.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, facts, and circumstances unique to this case,and taking into consideration his testimony,the Board found the discharge was inequitable. ” Additional Reviews : After a document review has been conducted, former...
USMC | DRB | 2009_Marine | MD0901915

Original file (MD0901915.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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.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...
NAVY | DRB | 2014_Navy | ND1400099

Original file (ND1400099.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...
USMC | DRB | 2006_Marine | MD0601192

Original file (MD0601192.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable. (20000519) SJA review (date): (20000615)Separation Authority (date): COMMANDER, MARINE CORPS BASE WESTERN AREA (20000616)Narrative Reason directed: Characterization directed: Date Applicant Discharged: 20000708 Additional...
NAVY | DRB | 2013_Navy | ND1300989

Original file (ND1300989.rtf) Auto-classification: Denied

After a complete review of the records, the Applicant’s statement, his defense counsel’s Letter of Deficiency following his administrative separation board, the separation board proceedings, the results of the Article 32 hearing, and the Applicant’s service records, the NDRB determined he was provided full due process and all applicable rights. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and...

Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1400089

Similar Decisions