Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1401237

Original file (ND1401237.rtf) Auto-classification: Denied

ex-YNSR, USN

Current Discharge and Applicant’s Request

Application Received: 20140617

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)        19981011 - 19890731     Active: 1989 0801 – 20071023 Hon

Period of Service Under Review:
Date of Current Enlistment: 20071024     Age at Enlistment: 37
Period of E nlistment : 4 Years 0 Months          Extension: None
Date of Discharge: 20140116      Highest Rank/Rate: YNC
Length of Service: 6 Y ear( s ) 2 M onth( s ) 25 D a y ( s )
Education Level: 12      AFQT: 33
Evaluation M arks:         Performance: 3.75 ( 7 )     Behavior: 3.625 ( 7 )      OTA: 3.70

Awards and Decorations ( per DD 214): (5) (7) (6)

Periods of UA :

NJP : 1

- 20100527 :      Article 92 (Failure to obey order or regulation) 2 Specifications
         Specification 1: Derelict in the performace of your duties as the Command Educational Service Officer, failed to order, properly administer and process the March 2009 cycle 203 Navy Wide Advancement AT02 exam as was his duty to do.
         Specification 2: failed to obtain official Navy-Wide Exam Profile Sheets, and created fraudulent Navy- Wide Exam Profile Sheets for five Squadron Personnel.
         Awarded: (Additionally received: Detachment for Cause)

S CM :

SPCM:

- 20130115 :       Art icle 80 (Attempts) 2 Specifications
         Specification 1: Attempted to steal US currency in the amount of $62,000.00 over two years
         Specification 2: Attempted to steal US currency in the amount of $72,000.00 over two years
         Art icle (Failure to obey order or regulation) Failed to give his command an accurate and true NAVYPERS 1616/27 records for his security screening, as was his duty to do.
         Art icle (False Official Statements) 5 Specifications
         Specification 1-3: Various statements made in an attempt to pass as a Senior Chief Petty Officer after knowing that his promotion to Senior Chief had been rescinded by his previous command.
         Specifications 4-5: False Statements regarding his part in fraudulently executing multiple “AT02 exams.”
         Art icle 132 (Frauds against the United States) 4 Specifications
         Specification 1: Used the signature of someone on a lease agreement, knowing the signature to be counterfeit.
         Specification 2: Used the signature of a second someone on a lease agreement, knowing the signature to be counterfeit.
         Specification 3: Used the signature of a sailor on a termination of Bachelor Housing Letter that he knew to be counterfeit.
         Specification 4: Used the s ignature of a LCDR on an endorsement letter knowing the signature to be counterfeit.
         Art icle (General Article) Wrongful impersonation of a Petty Officer of the Navy by publicly wearing the uniform and insignia of a Senior Chief Petty Officer of the Navy.
         Sentence : 10 months (20130115 – 20130913; 7 months 28 days)

Retention Warning Counseling :

- 19960915 :       For failure of Command Physical Readiness Test

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 19 December 2007 until Present, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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 that he deserves a portion of his retirement benefit due to his 20+ years of service.
2.       The Applicant contends that the discharge was too harsh given his 20+ years of service to the Navy .
3.       The Applicant contends that his conduct while serving his sentence in the Brig, along with post service conduct, merits consideration for an upgrade.

Decision

Date: 20 1 4 1030             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 complete d a thorough review of the circumstances that led to the Applicant’s 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 Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 2 specifications , specifically dereliction of duty; and for of the UCMJ: Article 80 ( Attempts , two specifications ) , Article 92 (Failure to obey order or regulation, Article 107 (False official statements, stating and wearing the rank of a Senior Chief Petty Officer of the Navy) and Article 132 ( Frauds against the United States) . The Special Court Martial adjudged a Bad Conduct Discharge as part of the sentence after finding the Applicant guilty of the charges.

: (Nondecisional) The Applicant contends that he deserves a portion of his retirement benefit due to his 20+ years of service. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of granting retirement benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends that the discharge was too harsh given his 20+ years of service to the Navy. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Additionally, during review, the appellate court stated, “After carefully considering the record of trial and the submissions of the parties, we are convinced that the findings and sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant occurred.” The Board determined that a preponderance o f the evidence reviewed supported the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a Bad Conduct discharge was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends that his conduct while serving his sentence in the Brig, along with post service conduct, merits consideration for an upgrade. t he 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 continued education, and evidence of commendable conduct while incarcerated , including letters of appreciation . Th e Applicant could have provided additional documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee clemency 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. To warrant clemency, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that 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 ntr ies, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT and the narrative reason for separation shall remain COURT MARTIAL.
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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NAVY | DRB | 2014_Navy | ND1401237

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